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FIRST
SECTION
CASE OF LEAS v. ESTONIA
(Application
no. 59577/08)
JUDGMENT
STRASBOURG
6
March 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Leas v. Estonia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić, President,
Peer
Lorenzen,
Khanlar Hajiyev,
Mirjana Lazarova
Trajkovska,
Julia Laffranque,
Linos-Alexandre
Sicilianos,
Erik Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 14 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 59577/08) against the Republic
of Estonia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Estonian national, Mr Johannes Leas (“the
applicant”), on 28 November 2008.
- The
applicant was represented by Mr A. Luberg, a lawyer practising in
Tallinn. The Estonian Government (“the Government”) were
represented by their Agent, Ms M. Kuurberg, of the Ministry of
Foreign Affairs.
- The
applicant alleged, in particular, that due to restrictions on his
access to the surveillance file in the criminal proceedings against
him, the principle of equality of arms had been violated and he had
not had adequate facilities for the preparation of the defence.
- On
8 March 2010 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
- On
1 February 2011 the Court changed the composition of its Sections
(Rule 25 § 1 of the Rules of Court) and the above application
was assigned to the newly composed First Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1943 and lives in Lemsi.
A. Pre-trial investigation
- On
31 May 2005 criminal proceedings were initiated in respect of the
applicant, mayor of the rural municipality (vallavanem) of
Kihnu at the material time. He was suspected of demanding bribes
(pistise võtmine) under Article 293 § 2 of the
Penal Code (Karistusseadustik). Supposedly, he had invited L.,
a representative of OÜ G., a private limited company, to
participate in a call for tenders for renovation work on port
buildings and on the local museum. Allegedly, he had proposed to
ensure the success of OÜ G.’s bids in return for ten per
cent of the sum of the transactions being paid to him after the
receipt by the company of the municipality’s pre-payment.
- On
3 June 2005 a prosecutor gave an authorisation (jälitustoimingu
luba) (authorisation LÄRP 16/273) for covert surveillance of
the applicant. The authorisation was for one day’s surveillance
and was valid from 6 to 10 June 2005.
- According
to a surveillance report dated 7 June 2005, covert surveillance of
the applicant had been carried out on the same day. The applicant had
met L., who had given him a plastic bag which he had put into his
pocket. A video recording of the event was appended to the
surveillance report.
- On
9 June 2005 the prosecutor gave another authorisation for the
application of surveillance measures in the criminal case, but
apparently no measures were applied on the basis of that
authorisation.
- On
10 June 2005 the President of the Tallinn City Court authorised
wiretapping, covert observation and audio recording of the
applicant’s conversations with L. The authorisation was for ten
days’ surveillance and remained valid until 10 July 2005.
- According
to a surveillance report dated 12 July 2005, undercover audio
recordings of conversations between the applicant and L. had been
made on 14 and 29 June and 5 July 2005. The audio recordings and
extracts of the transcripts of the conversations were attached to the
surveillance report.
- On
5 July 2005 the applicant and L. were arrested by the police while
they were meeting in the applicant’s car. Their arrest was
video recorded. The recording showed that a plastic bag containing
85,000 kroons (EEK) (approximately 5,430 euros (EUR)) and a
bank receipt made out to OÜ G. were found in the glove
compartment of the applicant’s car.
- The
applicant denied the charges. He was kept in pre-trial custody until
21 July 2005. L., who was charged with paying bribes and O. (the
manager of OÜ G.), who was charged as an accessory, pleaded
guilty and were not taken into custody.
- On
25 July 2005 the prosecutor refused to give the applicant access to
the information collected as a result of the application of the
surveillance measures because doing so could prejudice the criminal
proceedings or give rise to a criminal offence.
- On
2 January 2006, after the applicant had been acquainted with the
criminal case file, he asked the public prosecutor to have the
prosecutor’s and judge’s decisions authorising the
application of surveillance measures attached to the criminal case
file so that the lawfulness of the surveillance activities could be
assessed. On 12 January 2006 the prosecutor replied that the
authorisations for the surveillance activities were kept in the
surveillance file (jälitustoimik) and were not to be
included in the criminal case file: only the surveillance reports,
together with appendices, were to be included in the latter file.
- From
18 to 21 April 2006, the prosecutor drew up an indictment. According
to the charges set out therein, the applicant had invited L. to
participate in a call for tenders for renovation work on port
buildings and, on another occasion, on the local museum. The
applicant had asked for, and had received, EEK 45,000 kroons (EUR
2,880) and EEK 85,000 (EUR 5,430), respectively, for ensuring
the success of L.’s company’s bids.
- On
27 April 2006 the applicant again made a request to the prosecutor
concerning the surveillance measures. He emphasised that being able
to review the authorisations for the surveillance measures was
required in order to assess the lawfulness of the evidence which had
been taken from the surveillance file for use in the criminal case
file. Furthermore, he inquired whether additional information had
been obtained as a result of the application of the surveillance
measures, and requested access to it if such information existed, so
that, like the prosecution, he could adduce parts of it as evidence.
- On
28 April 2006 the prosecutor dismissed the request, noting that only
information of an evidential nature (tõendamiseseme
asjaolud) had been included in the criminal case file.
B. Court proceedings
1. Proceedings before the County Court
- On
8 May 2006 the applicant applied to the Pärnu County Court to
have the authorisations for the application of the surveillance
measures included in the criminal case file. He also noted that the
prosecution had had the opportunity to choose information which they
considered relevant from the surveillance file, and claimed that the
principle of the equality of arms required that he too be given
access to the totality of the information gathered with the use of
the surveillance measures. He requested that the court order the
Public Prosecutor’s Office to grant him such access.
- On
10 May 2006 the applicant, together with L., O. and OÜ G., was
committed for trial by the Pärnu County Court.
- At
hearings on 11 September 2006 and 22 January 2007 the applicant
repeated his requests concerning the surveillance authorisations. He
also raised concerns that L. had acted with the knowledge and under
the guidance of the police. At the hearing on 22 January 2007 a
police officer, P., was examined at the request of the applicant’s
counsel, who put a number of questions to him about various
procedural acts carried out during the preliminary investigation.
- On
22 January 2007 the court granted the application. It ordered that
the applicant’s counsel be granted access to the surveillance
information collected in the criminal case. It further instructed the
police to submit to the court the surveillance authorisations
(prosecutor’s authorisation LÄRP 16/273 and the
authorisation given on 10 June 2005 by the President of the Tallinn
City Court).
- On
5 February 2007 the applicant’s counsel informed the County
Court that the police department in possession of the surveillance
file had refused to give him access, arguing that under applicable
legislation the applicant’s counsel could have access only on
the basis of a power of attorney given by the applicant and
authenticated by a notary. Counsel asked the court to amend its
decision so that both he and the applicant would be granted access.
- On
7 February 2007 the County Court again ordered the police to grant
the applicant and his lawyer joint access to the material gathered as
a result of the application of the surveillance measures. The court
also reiterated that the police had been instructed to present the
surveillance authorisations to the court.
- On
8 February 2007 a police superintendent decided that the applicant,
but not his lawyer, could have access to the materials on which the
charges against him were based.
- At
a court hearing on 12 February 2007 the applicant’s lawyer
informed the court that the police had refused to comply with the
court order and that the applicant considered that his defence had
been seriously compromised. The public prosecutor considered that the
decision of the police superintendent should be quashed. She quashed
it on 16 February 2007. At the same hearing, the court announced that
it had in the meantime examined the surveillance authorisations.
According to the record of the hearing, the judge briefly summarised
prosecutor’s authorisation LÄRP 16/273 of 9 June 2005
and the authorisation given on 10 June 2005 by the President of the
Tallinn City Court. The hearing was adjourned so that the applicant
and his lawyer could examine the materials gathered by the
surveillance measures.
- On
4 April 2007 at the police department’s premises the applicant
and his counsel were given access to the prosecutor’s
authorisation LÄRP 16/273 of 3 June 2005 and the
authorisation given on 10 June 2005 by the President of the Tallinn
City Court. The police superintendent in charge informed the County
Court that the applicant’s counsel had not wished to examine
the other materials collected with the use of the surveillance
measures because the materials were the same as those included in the
judicial criminal case file.
- At
a court hearing on 17 May 2007 the applicant’s counsel
submitted that at the police department’s premises they had
been invited to examine the same materials that were to be examined
at court and that no access to other information had been given. He
argued that the undercover recordings were not admissible as evidence
and reiterated that the prosecutor had had a better opportunity to
select and present the evidence collected through surveillance. He
reiterated the concern that L. had collaborated with the police.
- At
a court hearing on 15 October 2007 the prosecutor noted that at the
hearing on 12 February 2007 the court had erred in referring to the
number of the surveillance authorisation issued by the prosecutor. In
the meantime, the authorisation had again been presented to the
court. The court specified that prosecutor’s authorisation LÄRP
16/273 had been issued on 3 June 2005. The applicant raised the
issue of confusion – not only in respect of the numbers of the
surveillance authorisations but also as concerned the dates when they
had been issued. He asked that the court order the prosecutor to
present the authorisations at the hearing. The prosecutor contended
that surveillance authorisations were not normally included in the
judicial case file but in the circumstances she considered it
appropriate to admit the authorisations to the file. After a short
break, the prosecutor procured and presented at the hearing
prosecutor’s authorisation LÄRP 16/273 (issued on 3 June
2005) and authorisation LÄRP 16/287 issued by the President of
the Tallinn City Court (issued on 10 June 2005). These authorisations
were admitted to the case file. The prosecutor and the court
confirmed that the authorisation of 9 June 2005 had been presented to
the court but no surveillance activities had been carried out on the
basis of it. The applicant’s request for submission and
inclusion in the case file of the latter authorisation was dismissed.
- On
30 November 2007 the Pärnu County Court convicted the applicant
as charged and gave him a suspended prison sentence of two years and
six months. Both L. and his company (OÜ G.) were convicted of
paying bribes. Proceedings in respect of O. were discontinued, due to
the minor nature of her guilt and the lack of public interest in the
continuation of the proceedings in her respect. A similar request by
the prosecutor in respect of L. was rejected by the court.
- The
court relied on the statements of L. and O., both of whom had pleaded
guilty to giving the applicant EEK 130,000 (EUR 8,310) in two
instalments. L.’s statements were corroborated by the
statements of O., who had withdrawn the money from a cash dispenser
and a bank so that L. could hand it over to the applicant. The court
considered it improbable that L. and O. would have each given
incriminating statements both in respect of themselves and the
applicant without there being some basis for such statements. None of
the accused had stated that they held a grudge against any of their
co-defendants.
- In
respect of the first count of paying bribes, the court further relied
on a video recording of L. meeting the applicant and giving him a
plastic bag, which the latter put into his pocket. According to a
surveillance report dated 7 June 2005, the covert video recording had
been authorised by the prosecutor. The court observed that the
prosecutor’s authorisation had been given on 3 June 2005; had
been for one day’s surveillance; and had been valid from 6 to
10 June 2005. The court found no reason to consider the surveillance
activity unlawful or untrustworthy: it had been carried out on one
day falling within the authorised period. The court additionally
relied on a bank statement, according to which the money in question
had been withdrawn shortly after the applicant’s company had
received an advance payment from the municipality. Shortly after the
withdrawal, L. had given the money to the applicant. The court also
examined two audio recordings seized from L. The recordings included
L.’s conversations with the applicant, from which it could be
understood that they had agreed on the payments and that L. had given
the applicant EEK 45,000.
- In
respect of the second count of paying bribes, the court heard several
witnesses – officials of the municipality and representatives
of companies on behalf of whom L. had made fictitious bids so that
his own company’s bid would be the best one. The court also
heard undercover audio recordings made on 14 and 29 June and 5 July
2005 on the basis of an authorisation given on 10 June 2005 by the
President of the Tallinn City Court. It noted that it had no grounds
to doubt that the surveillance authorisation was lawful. The
recordings were of conversations between L. and the applicant and
included references to specific sums of money. Furthermore, a video
recording of the applicant’s and L.’s arrest on 5 July
2005 was played back at the hearing, showing that a plastic bag
containing EEK 85,000 and a bank receipt made out to OÜ G. were
found in the glove compartment of the applicant’s car. Several
further items of documentary evidence and witness statements were
also relied on.
2. Proceedings before the Court of Appeal
- The
applicant denied the charges and appealed against the County Court’s
judgment. He argued, inter alia, that he had not been given
access to all the information gathered as a result of the application
of the surveillance measures, and that this had violated the
principle of the equality of arms and his defence rights. He further
complained about the confusion in the dates and numbers of the
authorisations for the application of the surveillance measures. The
court had been presented – outside the hearings – with
two prosecutor’s authorisations dated 3 and 9 June 2005 which
had apparently borne the same number.
- In
respect of the authorisation given on 10 June 2005 by the President
of the Tallinn City Court, the applicant noted that it had been for
ten days’ surveillance and had remained valid until 10 July
2005. He pointed out that audio recordings had been made on the basis
of that authorisation on 14 and 29 June and 5 July 2005. As the
applicant had not been given access to the totality of the
information gathered as a result of the application of the
surveillance measures, it had been impossible to establish whether
the application of the measures in question had in fact been limited
to the authorised ten days. He pointed out that the period between
the first (14 June) and the last (5 July) undercover recording had
been more than ten days. The County Court had only noted that it had
had no grounds to doubt that the surveillance authorisation had been
lawful but it had not given an opinion in its judgment on the
lawfulness of the surveillance activities, namely whether the
authorised ten-day period had been exceeded.
- The
applicant also reiterated his concern that L. had acted in the
interests and under the guidance of the police.
- The
prosecutor argued that the court had examined the lawfulness of the
evidence obtained with the use of the surveillance measures by all
means at its disposal and pointed out that pursuant to the State
Secrets Act the court had had the ability to examine information
obtained through surveillance if it so wished. Therefore, the
applicant’s argument that the judge had examined the
surveillance activities outside the hearings was inappropriate: the
court had fulfilled its tasks and had demonstrated an appropriate
level of interest in the information related to the criminal case.
- On
19 March 2008 the Tallinn Court of Appeal upheld the County Court’s
judgment. It considered that the applicant’s conviction was in
any event safe, even if the evidence challenged by the defence was
set aside.
- The
Court of Appeal found that there were no convincing reasons to think
that L. had co-operated with the police; the fact that he had been
charged with an offence rather confirmed that the police had received
information from third parties, in whose interest it was that parts
of the surveillance information were kept secret. The Court of Appeal
found that the applicant’s right to an adversarial trial had
not been infringed owing to the fact that the prosecutor – but
not the defence – had had access to the totality of the
information gathered with the use of surveillance measures. It
considered that there was no reason to overload the criminal case
file with irrelevant information. The rights of the defence had not
been violated in so far as the prosecutor had not adduced the
information in question as evidence against the applicant. Nor had
the County Court relied on evidence that had not been examined at
court hearings.
- In
a situation where the County Court had examined the lawfulness of the
evidence obtained on the basis of the Surveillance Act outside the
hearings, the Court of Appeal considered that the worthiness and
integrity of the County Court had to be presumed. Pursuant to the
Courts Act, judges had access to State secrets. The County Court had
not examined the surveillance materials secretly; rather, it had
subsequently recorded its examination in a record of a court hearing.
- The
Court of Appeal was satisfied that the County Court had examined the
surveillance authorisations. For its part, it analysed at length the
content of the authorisations and the surveillance activities carried
out on their basis and held that there could be no doubt that the
surveillance authorisations had been given retroactively. It further
found that since no surveillance activities had been carried out on
the basis of the authorisation of 9 June 2005 and since the
authorisation had not been used as evidence, there had been no reason
to admit that authorisation to the case file.
- In
his subsequent appeal to the Supreme Court the applicant noted, inter
alia, that he had been unaware during the proceedings before the
County Court that, between the public hearings, the court had
examined not only the surveillance authorisations but also the other
surveillance materials. He argued that if this had been the case (as
asserted by the prosecutor in the Court of Appeal and stated in the
Court of Appeal’s judgment), the requirements of a public
hearing and an adversarial trial had been breached.
- In
her reply to the applicant’s appeal, the prosecutor, inter
alia, explicitly stated that in the present case the judge of the
County Court had examined the surveillance authorisations and the
surveillance file.
- On
5 June 2008 the Supreme Court declined to hear the applicant’s
appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Code of Criminal Procedure
- Article 111 of the Code of Criminal Procedure
(Kriminaalmenetluse seadustik) provides that information
obtained by surveillance activities is admissible evidence if such
information has been obtained in compliance with the requirements of
law.
- Pursuant
to Article 112 of the Code, a surveillance authorisation
(jälitustoimingu luba) may be given by a preliminary
investigation judge or a prosecutor, depending on the type of
surveillance activity in question.
- Article
113 of the Code provides that a surveillance report shall contain,
inter alia, information obtained through the application of
the surveillance measures. Photographs, films, audio and video
recordings are to be annexed to the report if necessary.
- Article
115 of the Code concerns covert surveillance and Article 118 deals
with wiretapping, covert interception and observation of information.
Both Articles stipulate that information obtained through the
application of the relevant surveillance measures shall be entered in
the surveillance report in so far as necessary for the adjudication
of the criminal case (Article 115 § 3 and Article 118 §
2, respectively).
- Article 121 § 2 of the Code provides that at the
request of the person concerned, he or she is to be permitted to
examine the materials of the surveillance activities conducted with
regard to him or her. Nevertheless, in certain cases such information
can be withheld with the permission of the prosecutor. Such cases
include, inter alia, instances where: the information concerns
the private lives of other persons; its disclosure may damage the
rights and freedoms of other persons; it concerns State secrets; its
disclosure may endanger the life, health, honour, dignity or property
of an employee of a surveillance agency, of a person who has been
engaged in surveillance activities or who has been recruited for
surveillance activities, or the confidentiality of the latter’s
co-operation with a surveillance agency; or where disclosure may
prejudice criminal proceedings or give rise to a criminal offence.
Information can also be withheld if it cannot be separated or
disclosed without the information referred to above becoming evident.
B. Surveillance Act
- Section 8(1) of the Surveillance Act (Jälitustegevuse
seadus) obliges surveillance agencies to protect persons involved
in surveillance activities and, inter alia, ensure the secrecy
of their co-operation.
- Section
10-4(1) of the Surveillance Act stipulates that information collected
in the course of surveillance proceedings shall be stored in a
surveillance file (jälitustoimik).
- Section
16(4) of the Surveillance Act provides that the use of surveillance
information as evidence in a criminal case must not bring about
disclosure of the secret surveillance information or the identity of
persons who have been engaged in surveillance activities or recruited
therefore without their consent.
- Pursuant
to section 17(2) of the Surveillance Act a person’s right to
examine the materials concerning the surveillance activities carried
out in respect of him or her can be restricted on grounds similar to
those provided for in Article 121 § 2 of the Code of Criminal
Procedure (see paragraph 50 above).
- Section
18 of the Surveillance Act provides that everyone may file a
complaint with the head of a surveillance agency or its superior
agency or with the Public Prosecutor’s Office against the
activities of the surveillance agency upon the conduct of
surveillance activities. Furthermore, everyone has the right of
recourse to a court if his or her rights and freedoms have been
violated by surveillance activity.
C. State Secrets Act
- Section
4-1(3) of the State Secrets Act (Riigisaladuse seadus), as in
force at the material time, provided that information collected by
surveillance agencies on the basis of Articles 115 to 120 of the Code
of Criminal Procedure, and the methods, tactics and technical
equipment used for collection thereof to the extent to which such
information could be used as evidence, were State secrets classified
as “restricted”.
- Pursuant
to section 23(1)(4) of the State Secrets Act judges had the right of
access to State secrets.
- Section
25 of the State Secrets Act provided that participants in criminal
proceedings had the right of access to State secrets classified as
“restricted”, “confidential” or “secret”,
on the basis of a reasoned order of a preliminary investigator or
prosecutor or a court ruling, if access was unavoidably necessary for
the adjudication of the criminal case. Access could not be granted if
this jeopardised the performance of the duties of protection and
secrecy provided for in section 8(1) of the Surveillance Act (see
paragraph 51 above) and to State secrets classified as “top
secret”.
D. Case-law of the Supreme Court
- In a judgment of 17 January 2005 (case no.
3-1-1-114-04) the Criminal Chamber of the Supreme Court noted that it
proceeded unequivocally from Article 111 of the Code of Criminal
Procedure that any violation in collecting information through
surveillance excluded the admissibility of such information as
evidence.
- In a judgment of 5 December 2008 (case no.
3-1-1-63-08) the Criminal Chamber of the Supreme Court reiterated
that any violation in the process of collecting evidence through the
application of surveillance measures automatically resulted in the
inadmissibility of such information as evidence. It held that all
parties to court proceedings had to be able to verify whether Article
111 of the Code of Criminal Procedure had been complied with. Thus,
upon the receipt of a request of a party for the assessment of the
legality of a surveillance activity, the court was obliged to verify
the existence of an authorisation by a court or the Public
Prosecutor’s Office, and identify whether the information used
as evidence had indeed been obtained in the course of the authorised
activity and during the authorised period. The Supreme Court noted
that when determining the legality of surveillance, the court had to
ensure the protection of the State secret which served as the reason
for the prohibition of disclosure of the materials of the
surveillance file at a court hearing. However, the court could
disclose its opinion on the lawfulness of the surveillance. The
disclosure of the court’s opinion in this regard to the parties
had to be recorded in the record of the hearing and, if necessary, in
the judgment.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (B)
OF THE CONVENTION
- The
applicant complained that the principle of equality of arms had been
violated and that he had not had adequate facilities for the
preparation of his defence owing to the lack of access to the
surveillance file. He relied on Article 6 of the Convention, which,
in so far as relevant, reads as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal ...
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(b) to have adequate time and facilities for
the preparation of his defence;
...”
- The
Government contested that argument.
A. Admissibility
1. The parties’ submissions
- The
Government contended that the applicant had not exhausted domestic
remedies. Firstly, he had not used his right of recourse to a court,
guaranteed under section 18 of the Surveillance Act, which he could
have availed himself of if he had considered that his rights and
freedoms had been violated by the surveillance activity. Secondly,
before the indictment had been drawn up, the applicant could have
lodged a complaint with the Public Prosecutor’s Office against
a procedural act or order of the investigative body if he had
considered that his rights had been violated. A complaint against a
decision of the State Prosecutor’s Office could be lodged with
a county court (Articles 228 and 230 of the Code of Criminal
Procedure, respectively). The Government argued that the applicant
had not challenged the prosecutor’s decisions of 12 January and
28 April 2006.
- The
Government also argued that the applicant had not raised the issue of
the constitutionality of the pertinent provisions of the Code of
Criminal Procedure or the Surveillance Act.
- Lastly,
the Government pointed out that unauthorised and unlawful
surveillance were punishable under the Penal Code but the applicant
had not made any criminal complaints in this respect.
- The
applicant argued that in case of disagreement with a prosecutor’s
decision in pre-trial proceedings, any request that had been refused
by the prosecutor could be resubmitted in the course of the court
proceedings (Article 225 § 3 of the Code of Criminal Procedure).
Thus, he had not been required to file with the court a complaint
against the prosecutor’s decisions. Instead, he had directly
asked the County Court to grant him access to the surveillance
information and that court had granted his application.
- The
applicant submitted that there had been no reason to challenge the
constitutionality of the legislation in question because his rights
could have been afforded protection under the legislation as it
stood. The issue was rather that the police had not complied with the
court’s orders but the courts had drawn no consequences from
that.
2. The Court’s assessment
- The
Court reiterates that the only remedies which an applicant is
required to exhaust are those that relate to the breaches alleged and
which are at the same time available and sufficient. Moreover, an
applicant who has exhausted a remedy that is apparently effective and
sufficient cannot also be required to have tried others that were
available but probably no more likely to be successful (see, among
others, Aquilina v. Malta [GC], no. 25642/94, § 39,
ECHR 1999 III, and Micallef v. Malta [GC], no. 17056/06,
§ 58, 15 October 2009).
- The
Court is of the opinion that in the present case the thrust of the
applicant’s complaints in the domestic proceedings and before
this Court was not directed against the investigative organs’
activities as such, as he did not challenge their activities in the
context of, for example, his right to respect for his private life.
Rather, he complained of the lack of a fair trial on account of the
review of the lawfulness of the surveillance activities (whether they
were conducted in accordance with the authorisations) and about the
parties’ equal access to the information gathered in the course
of the application of the surveillance measures.
- The
Court considers that the applicant sufficiently and on several
occasions voiced his concerns about the lawfulness of the
surveillance activities and lack of access to the surveillance
materials before the domestic courts. The Court notes that the County
Court took steps to remedy the situation when it granted the
applicant’s access requests. Furthermore, neither the trial
court nor the Court of Appeal suggested that the applicant should
have challenged any decisions of the prosecutor or the police.
Instead, the courts analysed the lawfulness of the surveillance
activities and the question of whether the applicant should have had
access to the materials of the surveillance file was addressed,
rather than dismissed on procedural grounds.
- The
Court finds that in these circumstances the applicant was not
required to use any alternative remedies suggested by the Government.
It follows that this complaint cannot be rejected for non-exhaustion
of domestic remedies and that the Government’s objection is
therefore dismissed. The Court further notes that the complaint is
neither manifestly ill-founded within the meaning of Article 35 §
3 (a) of the Convention nor inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant argued that he had not been given access to the totality of
the information gathered as a result of the application of the
surveillance measures. In his submission, access to the surveillance
information had been required, firstly, since the defence wished to
make its own choice of evidence to be relied on in the criminal
proceedings, in addition to the choice made by the prosecutor.
Secondly, access to the surveillance information would have allowed
the defence to assess whether it had been obtained lawfully, that is
to challenge the admissibility of the evidence adduced by the
prosecution.
- The
Government submitted that the surveillance activities in respect of
the applicant had been carried out on the basis of authorisations
given by a prosecutor and a judge. Furthermore, during the
applicant’s trial the County Court had examined these
authorisations, as well as the conformity of the actual surveillance
activities to the authorisations. In the Government’s
submission, the conclusions of the trial court had been recorded in
the records of the court hearings of 12 February and 15 October 2007
and in the judgments. The fact that the court had examined the
contents of the surveillance file was also proved by its statement in
the record of the hearing that no surveillance activities had been
carried out on the basis of the authorisation dated 9 June 2005.
- The
Government argued that the applicant had had access to all the
evidence on which the charges against him had been based and that all
this evidence had been examined in court. In respect of the
restrictions on access to the surveillance file, the Government
considered that surveillance was secret by its nature and it would
lose its utility if all the information in a surveillance file,
including about the persons participating in surveillance, came to be
disclosed. Certain information was protected as a State secret
pursuant to the State Secrets Act; however, as a balancing measure,
judges had access to such information. In the Government’s
view, the judicial review of surveillance authorisations and the
activities performed on the basis of them should be considered as
adequate review, as it guaranteed the protection of the rights of the
accused, on the one hand, and the secrecy of surveillance, on the
other. In the present case, the judge of the County Court had
examined the whole surveillance file. Therefore, it had been
guaranteed that the file had not contained evidence vindicating the
applicant which the prosecutor could have concealed. The Government
also noted that the applicant had failed to explain exactly what he
wanted to prove by the undisclosed materials of the surveillance file
or exactly what materials he wanted to obtain from that file.
- Lastly,
the Government pointed out that the conviction of the applicant had
been based not only on the evidence obtained through surveillance.
They referred to the Court of Appeal’s judgment stating that
the applicant’s guilt had been proved even if the evidence
contested by him was set aside.
2. The Court’s assessment
- The
Court reiterates that the guarantees in paragraph 3 of Article 6 are
specific aspects of the right to a fair trial set out in paragraph 1.
In the circumstances of the case, it finds it unnecessary to examine
the applicant’s allegations separately from the standpoint of
paragraph 3 (b), since they amount to a complaint that he did not
receive a fair trial. It will therefore confine its examination to
the question of whether the proceedings in their entirety were fair
(see Edwards v. the United Kingdom, 16 December 1992, §§
33-34, Series A no. 247 B, and Rowe and Davis v. the United
Kingdom [GC], no. 28901/95, § 59, ECHR 2000 II).
- It
is a fundamental aspect of the right to a fair trial that criminal
proceedings, including the elements of such proceedings which relate
to procedure, should be adversarial and that there should be equality
of arms between the prosecution and defence. The right to an
adversarial trial means, in a criminal case, that both prosecution
and defence must be given the opportunity to have knowledge of and
comment on the observations filed and the evidence adduced by the
other party (Brandstetter v. Austria, 28 August 1991, §§
66-67, Series A no. 211). In addition, Article 6 § 1 requires
that the prosecution authorities disclose to the defence all material
evidence in their possession for or against the accused (see, mutatis
mutandis, Rowe and Davis, cited above, § 60).
- However,
the entitlement to disclosure of relevant evidence is not an absolute
right. In any criminal proceedings there may be competing interests,
such as national security or the need to protect witnesses at risk of
reprisals or keep secret police methods of investigation of crime,
which must be weighed against the rights of the accused (Doorson
v. the Netherlands, 26 March 1996, § 70, Reports of
Judgments and Decisions 1996 II). In some cases it may be
necessary to withhold certain evidence from the defence so as to
preserve the fundamental rights of another individual or to safeguard
an important public interest. However, only such measures restricting
the rights of the defence which are strictly necessary are
permissible under Article 6 § 1 (see Van Mechelen and Others
v. the Netherlands, 23 April 1997, § 58, Reports
1997 III). Moreover, in order to ensure that the accused
receives a fair trial, any difficulties caused to the defence by a
limitation on its rights must be sufficiently counterbalanced by the
procedures followed by the judicial authorities (see, mutatis
mutandis, Rowe and Davis, cited above, § 61, with
references to the above-cited cases of Doorson and Van
Mechelen).
- In
cases where evidence has been withheld from the defence on public
interest grounds, it is not the role of this Court to decide whether
or not such non-disclosure was strictly necessary since, as a general
rule, it is for the national courts to assess the evidence before
them (see Edwards, cited above, § 34). In any event, in
many cases, such as the present one, where the evidence in question
has never been revealed, it would not be possible for the Court to
attempt to weigh the public interest in non-disclosure against that
of the accused in having sight of the material. It must therefore
scrutinise the decision-making procedure to ensure that, as far as
possible, it complied with the requirements to provide adversarial
proceedings and equality of arms and incorporated adequate safeguards
to protect the interests of the accused (see Fitt v. the United
Kingdom [GC], no. 29777/96, § 46, ECHR 2000 II, and
Jasper v. the United Kingdom [GC], no. 27052/95, § 53, 16
February 2000).
- More
specifically, Article 6 § 3 (b) guarantees the accused “adequate
time and facilities for the preparation of his defence” and
therefore implies that the substantive defence activity on his behalf
may comprise everything which is “necessary” to prepare
the main trial. The accused must have the opportunity to organise his
defence in an appropriate way and without restriction as to the
possibility to put all relevant defence arguments before the trial
court and thus to influence the outcome of the proceedings (see
Connolly v. the United Kingdom (dec.), no. 27245/95, 26 June
1996, and Moiseyev v. Russia, no. 62936/00, § 220, 9
October 2008). Furthermore, the facilities which should be enjoyed by
everyone charged with a criminal offence include the opportunity to
acquaint himself, for the purposes of preparing his defence, with the
results of investigations carried out throughout the proceedings (see
C.G.P. v. the Netherlands (dec.), no. 29835/96, 15
January 1997, and Foucher v. France, 18 March 1997, §§ 26 38,
Reports 1997 II). The issue of adequacy of time and
facilities afforded to an accused must be assessed in the light of
the circumstances of each particular case (see Galstyan v.
Armenia, no. 26986/03, § 84, 15 November 2007, and
Dolenec v. Croatia, no. 25282/06, § 208, 26 November
2009).
- Failure
to disclose to the defence material evidence which contains such
particulars as could enable the accused to exonerate himself or have
his sentence reduced would constitute a refusal of facilities
necessary for the preparation of the defence, and therefore a
violation of the right guaranteed in Article 6 § 3 (b) of the
Convention (see C.G.P., cited above). The accused may,
however, be expected to give specific reasons for his request (see
Bendenoun v. France, 24 February 1994, § 52, Series A no.
284) and the domestic courts are entitled to examine the validity of
these reasons (see C.G.P., cited above; Natunen v. Finland,
no. 21022/04, § 43, 31 March 2009; and Janatuinen v. Finland,
no. 28552/05, § 45, 8 December 2009).
- Turning
to the present case, the Court notes that the applicant, claiming
access to the surveillance file, mainly relied on two arguments.
Firstly, he sought to establish whether the use of the surveillance
measures had been lawful and, secondly, he argued that the principle
of the equality of arms had required that he had the same opportunity
as the prosecution to choose evidence from the surveillance file.
Furthermore, it transpires from the applicant’s arguments that
he had certain concerns as to whether L. had in fact received
instructions from the police, which would have amounted to unlawful
surveillance and could have resulted in parts of the evidence being
inadmissible.
- The
Court notes that despite the County Court’s two rulings whereby
the applicant’s access to the surveillance file had been
authorised, he was in fact only given access to information which had
in any event been adduced as evidence by the prosecution.
Additionally, he was given access to two surveillance authorisations
which were later also added to the criminal case file.
- Since
the applicant was not given access to the remaining part of the
surveillance file, the Court has to ascertain whether the
decision-making procedure applied in the present case complied with
the requirements of adversarial proceedings and equality of arms and
incorporated adequate safeguards to protect the interests of the
applicant.
- The
Court notes that in the Government’s submission the County
Court had examined the surveillance file and had thus been able to
assess the lawfulness of the surveillance activities and the
admissibility of the evidence obtained by surveillance. The
Government mainly relied on the records of the County Court’s
hearings in this regard.
- The
applicant did not contest this argument. However, in his appeal to
the Supreme Court he noted that he had been unaware during the
proceedings before the County Court that the court had also examined
the other surveillance materials, in addition to the surveillance
authorisations, and that this had only been asserted by the
prosecutor before the Court of Appeal.
- The
Court considers that the records of the County Court’s hearings
of 12 February and 15 October 2007 are indeed open to different
interpretations as to the extent to which it had examined the
surveillance materials. The County Court’s and the Court of
Appeal’s judgments do not add much clarity to this matter.
Furthermore, the Court notes that the domestic courts gave no clear
reasons as to why it had been acceptable for the applicant to have
been denied access to the undisclosed information in the surveillance
file. Indeed, the Court recalls that the County Court initially
authorised such access – an authorisation which was not fully
complied with by the police – whereas the Court of Appeal in
its judgment, on the one hand, considered that there was no reason to
overload the criminal case file with irrelevant information, and, on
the other hand, referred to the secrecy of the surveillance
materials. However, the Court considers that these observations by
the Court of Appeal were of a general nature, as it does not appear
and it has not been argued that the appellate court itself examined
the surveillance file.
- The
Court finds that the present case is different from, for example, the
above-cited cases of Fitt and Jasper, where the
Court was satisfied that the defence were kept informed and were
permitted to make submissions and participate in the decision-making
process as far as possible and noted that the need for disclosure was
at all times under the assessment of the trial judge, providing a
further, important, safeguard. In those cases the Court found no
violation under Article 6 § 1. In the present case, in contrast,
the applicant only retroactively learned from the prosecutor that the
County Court had examined the surveillance materials. Moreover, he
was neither informed of the reasons for non-disclosure nor of the
nature of the undisclosed materials nor, indeed, of whether the
surveillance file did include any undisclosed material evidence. The
Court considers that the procedure followed by the judicial
authorities in the present case failed to adequately counterbalance
the difficulties caused to the defence by its restricted access to
the surveillance materials. The defence were not informed in an
adequate manner of the County Court’s position on why it had
been strictly necessary to restrict their rights and they had no
possibility of presenting their counterarguments to any such
considerations. The Court also takes note, in this regard, of the
Supreme Court’s subsequent case-law, according to which a trial
court, even if it was prevented from disclosing materials in a
surveillance file, may disclose its opinion on the lawfulness of the
surveillance, which opinion must be recorded in the record of the
hearing and, if necessary, in a judgment.
- Moreover,
the Court observes in this context that the County Court initially
did authorise the applicant’s access to the surveillance file –
implying that it found no reasons to restrict such access and
considered it to be of some importance for the defence – but
failed to take adequate measures to ensure compliance by the
investigating authorities with its orders. Nor was this issue of
non-compliance subsequently addressed in the judgements of the
domestic courts.
- In
these circumstances, the Court does not consider that the procedure
employed to determine the issue of disclosure of evidence complied
with the requirements to provide adversarial proceedings and equality
of arms or incorporated adequate safeguards to protect the interests
of the accused. It follows that there has been a violation of Article
6 of the Convention in this respect.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
Government submitted that in his application lodged with the Court on
28 November 2008 the applicant had stated that, as his priority was
to obtain reopening of the domestic proceedings, he waived seeking
just satisfaction related to his application. Accordingly, the
Government asked the Court to dismiss the applicant’s claims in
full.
- The
Court notes that pursuant to Rule 60 of Rules of Court an applicant
who wishes to obtain an award of just satisfaction under Article 41
of the Convention must make a specific claim to that effect (§
1). The applicant must submit itemised particulars of all claims
within the time limit fixed for the submission of the
applicant’s observations on the merits (§ 2).
- In
the present case, the applicant’s observations on the merits
together with his claims for just satisfaction were posted on 9
September 2010, which is within the time-limit that expired on 13
September 2010. The Court does not consider that the applicant’s
earlier statements on the matter were irrevocable or decisive. Thus,
the applicant’s claims for just satisfaction cannot be
dismissed on that ground.
A. Damage
- The
applicant claimed EEK 58,140 (EUR 3,716) in respect of pecuniary
damage. This was the sum he had paid to the State Treasury on the
basis of the judgment convicting him. It comprised money he had
received from the offence, reimbursement of an expert’s fee and
compensation levies. In respect of non-pecuniary damage the applicant
claimed EUR 10,000.
- The
Government argued that the sums the applicant had been obliged to pay
on the basis of the judgment convicting him could not be considered
as pecuniary damage. They also partly challenged the sum claimed by
the applicant. With regard to non-pecuniary damage, the Government
submitted that the applicant had the chance to ask for the reopening
of his case if the Court found a violation; therefore, the Government
considered that the finding of a violation constituted sufficient
redress. Should the Court decide to award a sum in just satisfaction,
the Government left the determination of a reasonable sum for
non-pecuniary damage to the Court.
- The
Court cannot speculate as to what the outcome of the proceedings
might have been if the violation of the Convention had not occurred
(see, for example, Jalloh v. Germany [GC], no. 54810/00, §
128, ECHR 2006 IX, and Martinie v. France [GC], no.
58675/00, § 59, ECHR 2006 VI). It finds that there is
insufficient proof of a causal connection between the violation found
and the pecuniary damage sustained by the applicant. There is,
therefore, no ground for an award under this head. On the other hand,
it awards the applicant EUR 5,200 in respect of non pecuniary
damage, plus any tax that may be chargeable to him thereon.
B. Costs and expenses
- The
applicant also claimed EEK 295,766 (EUR 18,903) for costs and
expenses incurred before the domestic courts and EEK 119,136.44
(EUR 7,614) for those incurred before the Court.
- The
Government considered that the costs and expenses incurred before the
domestic courts should be rejected and that the sums claimed by the
applicant were excessive.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 3,000 covering costs
under all heads.
C. Default interest
- 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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 of the Convention;
- 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, the following amounts:
(i) EUR
5,200 (five thousand two hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
3,000 (three 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 amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 6 March 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
