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Valda Dombrovska valdība mēģinājusi panākt, lai Eiropas Cilvēktiesību tiesa nemaz neizskatītu žurnālistes Ilzes Naglas sūdzību par tiesībsargāšanas iestāžu rīcību, sankcionējot kratīšanu viņas mājās un dažādu datu nesēju izņemšanu, - tas izriet no Latvijas valdības apjomīgajiem paskaidrojumiem tiesai, ko Pietiek saņēmis no Ārlietu ministrijas.

Pietiek šodien pilnā apmērā publicē šo angļu valodā nosūtīto dokumentu, no kura izriet, ka Dombrovska valdība lūgusi tiesu neizskatīt Naglas prasību kā tādu, kas nemaz nav piekritīga šai tiesai, turklāt apgalvojusi, ka Naglas tiesības konkrētajā gadījumā nemaz nav tikušas pārkāptas.

Kā zināms, otrdien Eiropas Cilvēktiesību tiesa atzina, ka šajā gadījumā Latvija pārkāpusi Cilvēktiesību un pamatbrīvību aizsardzības konvencijas 10.pantu par vārda brīvību un piesprieda Latvijas valstij samaksāt Naglai 20 000 eiro.

NAGLA v. LATVIA

(Application no. 73469/10)

MEMORIAL OF THE GOVERNMENT

 OF THE REPUBLIC OF LATVIA

I. INTRODUCTION

  1. In response to the application No. 73469/10 submitted by Ilze Nagla (the applicant) and registered by the Court on 16 December 2010, the Government of the Republic of Latvia (the Government) would like to present the following comments.
  1. In this Memorial the Government will supplement the summary of facts in the present case as prepared by the Court’s Registry and will provide information concerning the relevant legislation of Latvia. Further, the Government will present its opinion as to the admissibility and merits of the applicant’s complaint under Article 10 of the Convention. In doing so, the Government will provide its observations within the scope of questions posed by the Court to the parties in the present case, and will incorporate into the relevant parts of the present Memorial the responses to the specific questions. Should the Court wish to examine other aspects of the applicant’s complaint, the Government is of the opinion that additional questions should be posed to the parties.

II. THE FACTS 

 

II.1. The search at the applicant’s domicile and subsequent reviews

  1. Following the State Revenue Service application of 4 February 2010, on 10 February 2010 criminal proceedings No.11816003310 concerning the fact of allegedly arbitrary access to the State Revenue Service Electronic Declaration System (“EDS”) were initiated. Within the said criminal proceedings, on 11 May 2010 the State Police investigator J.F. issued a search warrant authorising immediate search at the applicant’s domicile. According to the search warrant, in the course of the criminal proceedings it had been established that the information had been unlawfully obtained by making use of a mistake in the EDS software system. Information from the EDS database had been downloaded using simultaneously several IP addresses.  On 11 May 2010 the police had established that two of these IP addresses were used by certain I.P. It was further established that at the time period when the download of the EDS XML files had taken place, I.P. had had systematically contacted the applicant, using mobile phone. Accordingly, the police had sufficient reasons to conclude that the applicant might possess information about I.P.’s unlawful activities by illegally downloading the EDS XML files, processing, preserving and distributing them, as well as about I.P.’s accomplices and other information related to the criminal proceedings that could serve as an evidence for the purposes of these proceedings. The necessity to conduct the search under the urgent procedure was based on the need to prevent destruction, concealment or defacement of the evidence. The search warrant was subjected to an appeal that could be lodged with the Prosecutor Office within 10 days.
  1. Pursuant to Article 180, paragraph 5, of the Criminal Procedure Law, on 12 May 2010 the police investigator J.F. informed the investigative judge of the Central District Court of the City of Riga that on 11 May 2010, having been faced with urgent circumstances in the course of the initiated criminal proceedings and having obtained the prosecutor’s authorisation, several searches had been conducted at I.P.’s domicile, workplace and other premises used by him, as well as at the applicant’s domicile pursuant to Article 180, paragraph 3, of the Criminal Procedure Law. The investigative judge was requested to verify the lawfulness and validity of the said investigative activities; the criminal case file No.11816003310 was attached thereto.  
  1. On 13 May 2010 the applicant lodged a complaint with the investigative judge of the Central District Court of the City of Riga under Articles 96, 100 and 116 of the Constitution; Article 12, paragraph 1, Article 139, paragraph 1, Article 154, Article 180, paragraphs 1, 3 and 5, of the Criminal Procedure Law; Articles 4, 22 and 24 of the Law on Press and Other Mass Media, requesting both to recognise unlawfulness of the search and inadmissibility of the evidence obtained as a result of the search.  The applicant alleged that the search warrant, the prosecutor’s authorisation and de facto actions of the police officials during the search were unlawful. The applicant questioned the existence of urgent circumstances and sufficient evidence allowing conducting the search without a prior investigative judge’s consent. The applicant complained about the lack of any judicial review over the police’s unlimited access to the journalist’s information and its sources gathered and stored in her computer and other data storage devices, preventing the applicant from protecting the confidentiality of her information sources. Finally, the applicant contested the de facto actions of the police officials on the account of the scope of items seized by the police as a result of the search. According to the applicant, they were irrelevant to the criminal proceedings No.11816003310. 
  1. Simultaneously, on 13 May 2010 the applicant filed a complaint with the Prosecutor Office, challenging the search warrant issued by the police investigator, the supervising prosecutor’s authorisation and de facto actions of the police officials during the search. Having examined the applicant’s allegations, on 21 May 2010 the Prosecutor Office concluded that on 12 May 2010 the investigative judge had authorised the search according to Article 180, paragraph 5, of the Criminal procedure Law. Thus, the Prosecutor Office was not competent to re-examine the lawfulness of the search at the applicant’s domicile. The applicant did not appeal against this decision.
  1. On 17 May 2010 the investigative judge of the Central District Court of the City of Riga informed the applicant that pursuant to Article 337, paragraph 4, of the Criminal Procedure Law her complaint of 13 May 2010 was forwarded to the President of the Central District Court of the City of Riga for examination, given that in substance the applicant was to challenge the investigative judge’s approval of the search.
  1. On 18 May 2010 the President of the Central District Court of the City of Riga requested the police investigator J.F. to provide the court with the criminal case file No.11816003310 or its copies, as well as to submit her explanations concerning the issues invoked by the applicant in her complaint of 13 May 2010. On the same day the court informed the applicant about the activities undertaken in examining her complaint.
  1. On 20 May 2010 the Internal Security Office of the State Police (on its own initiative) commenced the examination of the respective police officials’ conduct while performing the search at the applicant’s domicile on 11 May 2010. In the course of the examination both the explanations by the police officials and the applicant were obtained. 
  1. On 10 June 2010 the State Police forwarded to the Central District Court of the City of Riga both the criminal case file (19 volumes) and the police investigator J.F.’s explanations concerning the criminal proceedings No.11816003310. 
  1. According to the police investigator, as a result of unlawful large-scale download of XML files from the EDS database containing personal data about private individuals and legal entities, hundreds of thousands of persons’ rights to private life enshrined in Article 12 of the UN Universal Declaration of Human Rights, Article 8 of the Convention, Article 8 of the EU Charter of Fundamental Rights and Article 96 of the Constitution had been violated. Given the existing threats to the individuals’ rights, it had been necessary to establish the perpetrators of the criminal offence and to seize the unlawfully obtained EDS data at the earliest possible convenience (including from the third persons who might have acquired them in the meantime) in order to exclude their further illegal processing and human rights violations.  Although on 19 February 2010 the journalists (including the applicant), questioned by the police, had refused to reveal their source of information and the investigator responsible for the pre-trial investigation had been willing to address an investigative judge, requesting to adopt a decision pursuant to Article 154 of the Criminal Procedure Law, having consulted the supervising prosecutors, it had been decided not to perform investigative activities obliging the journalists to reveal their source of information with due regard to the  principle of proportionality and Article 22 of the Law on Press and Other Mass Media. Thus, the further pre-trial investigation was directed differently. 
  1. Having performed time-consuming and intensive investigation, after three months (on 11 May 2010) it was established that I.P. was most likely responsible for data downloading, processing and dissemination. In order to establish I.P.’s accomplices, the police had examined the list of incoming and outgoing calls from his mobile phone. Given that I.P.’s phone communications with the applicant commenced and corresponded to the dates of data downloading from the EDS database, the police assumed that the applicant might be possibly connected with the criminal offence at issue and possess data storage devices or documents containing unlawfully downloaded files and their derivatives, software for processing these files, information about acquisition and distribution of these files, as well as other documents and items that could serve as an evidence in the criminal proceedings.  Thus, given the urgency, on the same date the search warrant was issued. According to the investigator, the purpose of the search warrant and subsequent search had not been to establish the source of the applicant’s information or to obtain information relevant thereto, since the alleged perpetrator had been already known to the police. The applicant’s “witness” status had remained unchanged. It was further stated that in the light of principle enshrined in Article 12 of the Criminal Procedure Law, the aim of the criminal proceedings could not have been reached by means of other investigative activities. In order to justify the urgency of the search, the investigator emphasised the specific nature of preservation, acquisition and recording of electronic evidence, where the information stored in electronic form could be promptly and irreversibly altered or destroyed. Given that I.P. was apprehended at 6.55 p.m. on 11 May 2010, the police could not exclude irreversible destruction of electronic evidence, had it proceeded in accordance with the procedure set by Article 180, paragraph 1, of the Criminal Procedure Law.
  1. On 20 July 2010 the State Police informed the applicant that there were no infringements established that could serve as a basis for initiating the disciplinary proceedings against the police officials who had conducted the search at her domicile on 11 May 2010.

II.2. Expertise following the search

  1. By the decision of 14 May 2010 on cyber-technical expertise, the seized items, packed in two sealed non-transparent plastic bags, were forwarded to the Department of Forensic Criminalistics of the State Police for expertise. The received packaging and the seal were without any signs of defects, demonstrating that nobody had had any access to the items packed therein. On the same date the items to be examined were handed over to the expert of the Department of Forensic Criminalistics of the State Police. On 17 May 2010 the responsible expert opened the packaging and established that their content corresponded to the items listed in the decision of 14 May 2010. Between 17 and 18 May 2010 the expert made “image” copies of the respective data storage devices, using specially protected computer and recording program. 
  1. On 19 May 2010 the originals of the seized items, packed in a purpose-made packaging and marked with security labels, were returned back to the investigator responsible for the pre-trial investigation. On 21 May 2010, i.e. after ten days, the seized items were returned back to the applicant. According to the information at the Government’s disposal, the applicant had not made any subsequent complaints in this respect.

 

II.3. Review by the Ombudsman

  1. On 13 May 2010 the Ombudsman instituted an ex officio inquiry pursuant to Article 24 of the Law on Ombudsman concerning the search at the applicant’s domicile on 11 May 2010. It appears that on 14 May 2010, the applicant had addressed the Ombudsman requesting to open an inquiry and evaluate the activities of the State authorities. The applicant alleged violation of Article 95 of the Constitution, Article 8 of the Convention, as well as Article 22 of the Law on Press and Other Mass Media. In the course of inquiry the Ombudsman requested and received information from the Central District Court of the City of Riga, the Prosecutor Office, the State Police, the Data State Inspectorate, as well as independent experts.
  1. According to the Prosecutor Office response of 3 June 2010, it was not competent to deliver an opinion concerning the lawfulness of the search at the applicant’s domicile, given that the examination of the applicant’s complaint about the investigative judge’s decision authorising the search was still pending. At the same time it was pointed out that there were no reasons to believe that the competent prosecutor had authorised the search without giving a proper regard of the criminal case file materials and all circumstances of the case. Also, the aim of the search had been to obtain and fix the evidence in the criminal proceedings, not to reveal the applicant’s source of information.
  1. According to the information provided by the State Police on 17 June 2010, the police officials’ actions during the search had complied with the requirements of Articles 181 and 182 of the Criminal Procedure Law. Namely, the search was conducted at the applicant’s presence; prior to the search she had been issued with a copy of the search warrant and had agreed to voluntary hand over the searched items; as a result of the search only the items listed in the search warrant were seized; the State Police officials had not infringed the basic principles of professional ethics.
  1.  On 13 July 2010 the Data State Inspectorate delivered its opinion according to which acquisition and dissemination of personal data and other information from the EDS database could be regarded as a criminal offence under Articles 145, 200, 241, 243, 245, 329 and 330 of the Criminal Law. It was also noted that the Inspectorate had not received complaints from individuals concerning the acquisition and exploitation of information stored in the EDS database. Meanwhile such complaints had been received from several legal entities. Finally, according to the Inspectorate, illegal acquisition of personal data could not be justified and rendered lawful even if their subsequent dissemination served a legitimate aim. In the absence of legal basis for acquisition of personal data, the right of any individual, whose personal data were acquired, to personal data protection had been infringed, irrespective of the fact that following the acquisition the personal data were published for journalistic purposes.
  1. On 28 September 2010 the Ombudsman delivered his opinion. It was noted that in accordance with Article 375, paragraph 1, of the Criminal Procedure Law during the course of pending criminal proceedings the criminal case file materials were considered to be a secret of investigation and only officials conducting the criminal proceedings at issue, as well as persons who were presented with respective materials in accordance with the procedure set by the Criminal Procedure Law were allowed to be acquainted with them. Given that the Ombudsman had a limited access to the criminal case file materials, his opinion was based on information received from the State authorities and that from the applicant. Also, the Ombudsman concluded that in the light of Articles 12, 154, 179 and 180 of the Criminal Procedure Law, there did exist a statutory basis for disclosure of source of information, search and proportional limitation of human rights within criminal proceedings. Thus, the interference was prescribed by law.

III. THE RELEVANT DOMESTIC LAW AND PRACTICE

III.1. Domestic law

  1. 5 June 1996 the Law on the Constitutional Court (as amended by the law of 30 November 2000, in force as of 1 July 2001):

Article 16

The Constitutional Court shall review cases regarding:

(1) compliance of laws with the Constitution;

(2) compliance of international agreements signed or entered into by Latvia (even before the Saeima has confirmed the agreement ) with the Constitution;

(3) compliance of other normative acts or their parts with the legal norms (acts) of higher force;

(4) compliance of other acts (with an exception of administrative acts) adopted by the Saeima, the Cabinet of Ministers, the President, the Chairperson of the Saeima and the Prime Minister with the law;

(…)

(6) compliance of the national legal norms of Latvia with the international agreements entered into by Latvia, which are not contrary to the Constitution.”

Article 192 

1. Any person who considers that a legal provision, which is not in compliance with a provision of higher force, has infringed his or her fundamental rights set out in the Constitution may lodge a constitutional complaint with the Constitutional Court.

2. A constitutional complaint 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 such remedies do not exist.

3. Where examination of a constitutional complaint is in the public interest or where legal protection of the rights in question via ordinary remedies does not enable the applicant to avoid substantial damage, the Constitutional Court may decide to examine the application even before all other domestic remedies have been exhausted. The institution of proceedings before the Constitutional Court shall suspend examination of a civil, criminal or administrative case by the court of general jurisdiction until the moment of delivery of the Constitutional Court’s judgment.

4. A constitutional complaint may be lodged within six months from the date on which the decision of the highest instance becomes final.

(…).”

Article 32

1. The judgment of the Constitutional Court shall be final. It shall come into legal effect at the time of its 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 the Constitutional Court rules otherwise.

(…).”

  1. The relevant provisions of the Criminal Law of 17 June 1998 (in force as of 1 April 1999), as applicable at the material time read as follows:

Article 145. Unlawful activities involving personal data of individuals

1. For unlawful activities involving personal data of individuals, resulting into significant damage,

the applicable sentence shall be deprivation of liberty not exceeding two years or arrest, or community service, or a fine not exceeding the minimum monthly wage one hundred times.

(…).”

Article 244. Unlawful activities with devices influencing computerised data processing system resources  

1. For unlawful production, adaptation, sale, distribution or storage of devices (also software), which are intended for influencing computerised data processing system resources with a view to commit a criminal offence,

the applicable sentence shall be deprivation of liberty not exceeding four years or community service, or a fine not exceeding the minimum monthly wage one hundred fifty times.

2. For the same activities if they have caused significant consequences,

the applicable sentence shall be deprivation of liberty not exceeding ten years or a fine not exceeding the minimum monthly wage two hundred fifty times.”

  1. The relevant provisions of the 21 April 2005 Criminal Procedure Law (in force as of 1 October 2005):

 

Article 12. Human rights guarantees

1. Criminal proceedings shall be performed in compliance with internationally recognised human rights, precluding imposition of unjustified criminal procedural obligations or disproportionate interference with a private life.

2. Human rights shall be restricted only for public safety reasons and only in accordance with the procedure specified by this Law, given the nature and danger of the criminal offence.

3. Application of security measures depriving of liberty, infringement of inviolability of places restricted to public, confidentiality of correspondence and means of communication shall be allowed only with the consent of an investigative judge or court.

4. An official, performing criminal proceedings, shall have an obligation to protect the confidentiality of private life and commercial confidentiality. The respective information shall be obtained and used only if such information is necessary in order to clarify conditions that are to be proven.

5. An individual shall have a right to request not to reflect in the criminal case the information concerning (…) the private life (…) if such information is not necessary for a fair settlement of criminal-law relations.

 Article 40. Investigative judge

An investigative judge shall be the judge who has been assigned by the president of a district (city) court, for a definite term and in cases and procedure provided by law, to control the compliance with human rights in criminal proceedings.”

Article 121. Professional secrets protected by criminal procedure

1. The right not to testify shall not be restricted and personal notes shall not be seized with regard to:

1) priest, concerning information obtained as a result of confession;

2) defence counsel and sworn attorney who have provided legal assistance of any kind, concerning confidential information entrusted by the client;

3) interpreter invited by the sworn attorney with a view to ensure defence rights and of whom the authority responsible for criminal proceedings has been notified about, indicating the necessary information about the interpreter: name, surname, personal identity number, place of practice or declared place of residence.

2. Only the Senate of the Supreme Court composed of three judges shall allow:

1) to question a judge and seize his/her personal notes concerning secret of the deliberations room;

2) to question, seize documents and demand information about employees who perform direct detective activities in a criminal environment, intelligence or counter-intelligence abroad.

3. An investigative judge’s permission shall be obtained:

1) for examination and seizure of documents containing State secret and top secret;

2) for examination and seizure of unopened will, and questioning about the will the person who had approved it;

3) for questioning an employee and a person who has been authorised by the authority responsible for criminal proceedings or investigating authority to perform special investigating activities, if the said person does not wish to testify.

4. A medical institution shall provide information about a patient only upon a written request by the authority responsible for criminal proceedings.

(...)”

Article 122. Sworn attorney’s immunity

1. It shall be prohibited:

1) to question a sworn attorney in the capacity of witness concerning facts that have become known to him/her by providing legal assistance in any form;

2) to control, examine or seize documents drafted by a sworn attorney or correspondence sent or received by him/her by providing legal assistance, as well as to perform a search in order to find and seize respective correspondence and documents;

3) to control software systems and means of communication used by a sworn attorney to provide legal assistance, to copy the respective information and to interfere in the operation thereof .

2. An unlawful activity by a defence counsel or sworn attorney performed in the interests of a client in providing legal assistance in any form, as well as an activity aimed at promotion of an unlawful offence of a client, shall not be regarded as a provision of legal assistance.”

Article 179. Search

1. A search is an investigating activity by which a forcible examination of premises, terrain, vehicles and individual persons is performed with a view to find and seizure the sought object, if there are sufficient reasons to believe that the sought object is located at the site of the search.

2. A search shall be performed with a view to find objects, documents, corpses or persons that are material for the criminal proceedings.”

Article 336. Right to submit a complaint

1. A complaint regarding the actions or decisions of an official performing criminal proceedings may be submitted by a person involved in the proceedings, as well as by person whose rights or lawful interests have been infringed upon by the specific actions or decisions.

(…)

3. A decision of an authority responsible for the criminal proceedings shall be subject to appeal, except for the cases specified in this Law.”

Article 337. Submission of a complaint

1. A complaint shall be addressed and submitted to an official or institution that is entitled to decide on it. A complaint may be submitted also to an official whose action or decision is being appealed against.

2. A complaint shall be transferred for deciding:

1) to the authority responsible for criminal proceedings regarding the actions of a member of an investigating group, an official carrying out procedural task, an expert or an auditor;

2) to the supervising prosecutor regarding the actions or decision of an investigator or the direct supervisor of the investigator;

3) to the prosecutor of a higher level regarding the actions or decision of a prosecutor;

4) to the president of the court regarding the actions or decision of an investigative judge;

5) to the president of the court regarding the actions or decision of a judge;

6) to the higher level court regarding the judgment or decision of a judge or court;

3. If a person has appealed against the (…) decision adopted by a person referred to in paragraph two, subparagraphs 1-3 of this Article and does not agree with the decision adopted by the prosecutor of a higher level, he/she may appeal against such a decision by submitting a complaint to the next higher-level prosecutor. The latter’s decision shall be final in the pre-trial criminal proceedings.

(…).”

Article 339. Terms for submission of complaints

1. Complaints regarding officials’ actions and decisions adopted within a pre-trial investigation may be submitted within the entire course of the pre-trial proceedings.

(…)

4. If the deadline for the submission of a complaint has been missed due to a well-founded reason, the procedural deadline may be renewed on the basis of a request of the submitter by the authority or official who has the right to examine the complaint.”

Article 342. Examination of complaints

1. Having received a complaint, within three working days after the day of the receipt, the recipient thereof shall decide on its examination or forward it according to jurisdiction.

2. It shall be prohibited to assign the examination of a complaint to the same official whose actions or decisions are being appealed against, or to the official who has authorised the appealed decision.

(…).”

Article 375. Acquaintance with the criminal case file

1. During the course of pending criminal proceedings the criminal case file materials shall be considered to be a secret of investigation and only officials, conducting the criminal proceedings, as well as persons who are presented with materials by the respective officials in accordance with the procedure set by the this Law, shall be permitted to get acquainted with such materials. (…).” 

 

III.2. Relevant practice

 

24.  By its judgment of 11 October 2004 in the case No.2004-06-01[1] the Constitutional Court held that the remedy provided by Articles 220 and 222 of the Criminal Procedure Code was in conformity with Article 92 of the Constitution, as well as with Articles 6 and 13 of the Convention. The Constitutional Court expressly acknowledged that the Prosecutor Office remained an independent institution providing effective protection to individuals during the pre-trial investigation stage in cases of alleged violations of their procedural and/or constitutional rights. The Constitutional Court also emphasised that the Prosecutor Office pursuant to Article 1, paragraph 1 of the Law on Prosecutor Office of 19 May 1994 was an institution exercising judicial functions.

25.  By its subsequent judgment of 11 May 2011 in the case No.2010-55-0106[2] the Constitutional Court upheld its previous conclusions that the Prosecutor Office in Latvia might be regarded as an effective and available remedy, since the status and the role of a prosecutor in supervision of law ensured independent and impartial review of complaints in compliance with Article 13 of the Convention.

26.  In its judgment of 2 May 2012 in the case No.2011-17-03[3] the Constitutional Court was called to rule on compatibility of the provisions of the Cabinet of Ministers Regulation No.321, providing for a restrictive list of empty data storage devices and reproduction equipment for which carrier levy had to be paid. The Constitutional Court held that the legislator was committed to periodically consider the effectiveness, appropriateness and necessity of the legal regulation in place, as well as whether it should be improved by updating the already existing one. In case of the failure to perform the said duty, the protection of fundamental rights enshrined in Article 113 of the Constitution was not ensured. Accordingly, the contested provisions were held to be unconstitutional by the Constitutional Court.

IV. THE LAW

IV.1. PRELIMINARY OBJECTION UNDER ARTICLE 34 OF THE CONVENTION AND RULE 47 OF THE RULES OF THE COURT

27.  The Government maintains that the Court is precluded from examining the present application on the account that it fails to satisfy the requirements of Article 34 of the Convention and Rule 47 of the Rules of the Court, which insofar as relevant read as follows.

“Article 34. Individual applications

The Court may receive applications from any person, non-governmental organization or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. (…)”

 “Rule 47. Contents of an individual application

1. Any application under Article 34 of the Convention shall be made on the application form provided by the Registry, unless the President of the Section concerned decides otherwise. It shall set out

(…);

and be accompanied by

(h) copies of any relevant documents and in particular the decisions, whether judicial or not, relating to the object of the application.

2.Applicants shall furthermore

(a) provide information, notably the documents and decisions referred to in paragraph 1 (h) of this Rule, enabling it to be shown that the admissibility criteria (exhaustion of domestic remedies and the six-month rule) laid down in article 35 § 1 of the Convention have been satisfied; and

(…).

4. Failure to comply with the requirements set out in paragraphs 1 and 2 of this Rule may result in the application not being examined by the Court.”

28.  The Government recalls that Article 35, paragraph 1, of the Convention requires, inter alia, that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and according to the procedural requirements established by the domestic law.[4]

29.  The Government is of a firm belief that Article 34 of the Convention and Rule 47 of the Rules of the Court should not be perceived as a mere formality. The requirements enshrined therein, in particular concerning the documentary evidence (including complaints, applications) furnished by the applicant and demonstrating compliance with the admissibility criteria, allows the Court to assess properly important procedural issues, i.e. whether the applicant has exhausted all available domestic remedies with respect to the complaints brought before the Court and whether the substance of these complaints has been aired in the domestic proceedings in accordance with any formal requirements; the issues that are decisive for declaring an application admissible and proceed with its examination on merits. In order to allow the Court to proceed with the application, it is the applicant’s responsibility to duly complete an application form and annex all the relevant documents that demonstrate the fulfilment of the applicant’s obligations.

30.  In the instant case the applicant has not furnished the Court with any of the copies of her complaints lodged with the domestic authorities, thus failing to demonstrate that the issues complained of before the Court had been made at least in substance at the national level. Neither has the applicant indicated to the circumstances or practical obstacles that had prevented her from exercising her obligations. Moreover, the Government believes that the applicant’s failure to complete the case file properly in the instant case is subject to even more rigorous Court’s scrutiny, given the particular quality of legal assistance provided to the applicant in the proceedings before the Court and the six-month time period that was at the applicant’s disposal (the present application was lodged with the Court on 14 December 2010, whereas the final decision was adopted on 14 June 2010).

31.  The Government would like to reiterate in this respect that already in December 2005, the Honourable Lord Woolf in his Review of the Working Methods of the European Court of Human Rights particularly noted that the Court should take a firmer view as to what qualifies as an application. It was noted that it should be the responsibility of the individual applicant to submit a properly completed application form, and provide the Court with all the information required for processing the application. Thus, the Review recommended, in particular, that the Court should only deal with properly completed applications forms which contain all the information required for the Court to process it.[5] In addition, the Government notes that the President of the Court in one of his latest speeches indicated that an idea of “requiring the lodging not merely of an informal letter of complaint within the 6-month period permitted but of a fully completed and detailed application form with the essential supporting documents”[6] was to be further discussed and developed.

32.  Having regard of the mentioned, the Government invites the Court to dismiss the present application as being incompatible with Article 34 of the Convention and Rule 47 of the Rules of the Court.

IV.2. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

33.  Invoking Article 10 of the Convention, the applicant complained that the search conducted at her domicile and the subsequent seizure of her private computer and other data storage devices was in breach of freedom of expression, as guaranteed by Article 10 of the Convention. The applicant alleged that the interference at issue was not “prescribed by law” for the lack of explicit and clear statutory procedural safeguards concerning journalists’ right not to disclose information identifying a source during a search and seizure. The applicant requested the Court to clarify the duties of the State in this respect.

34.  Article 10 of the Convention reads as follows:

“1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

35.  The Government disagrees with the applicant. 

36.  Prior to submitting observations on the merits of the alleged violations, the Government would like to submit its observations as to the admissibility of the present applicant’s complaint.

 

IV.2.1. Admissibility

37.  The Government maintains that the present application should be declared inadmissible, as it has not been introduced in compliance with the procedural requirements (exhaustion of domestic remedies) prescribed by Article 35, paragraph 1, of the Convention.

38.  The rule of exhaustion of domestic remedies reflects the subsidiary character of the machinery of protection established by the Convention assuming “that there is an effective remedy available in respect of the alleged breach in the domestic system”.[7] The Government further notes that “under Article 35 (...) normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (...)”[8]. The Government firmly believes that the remedy available to the applicant in the present case satisfied the mentioned criteria.

39.  In the instant case the applicant in particular questioned the quality of Article 180 of the Criminal Procedure Law, as applied with respect to her, on the account of lack of specific procedural safeguards during the search and seizure at a journalist’s domicile. Also, the applicant invoked the legislator’s failure to protect journalists’ immunity in the criminal proceedings. The Government notes in this respect that Article 121 and 122 of the Criminal Procedure Law listed the persons who enjoyed both the privilege of non-disclosure of their professional secrets and criminal immunity. Journalists were not covered by the aforesaid provisions.

40.  The Government would like to point out that if the applicant believed that the procedure envisaged in Article 180 of the Criminal Procedure Law as applied in respect to her lacked sufficient procedural guarantees and that the failure to provide additional statutory safeguards in respect of journalists concerning the non-disclosure privilege (Articles 121 and 122 of the said Law) interfered both with her right to freedom of expression and private life, the applicant could have and should have submitted, pursuant to Article 19² of the Law on the Constitutional Court, a constitutional complaint with the Constitutional Court, challenging, inter alia, the conformity of Articles 121 (and 122) and 180 of the Criminal Procedure Law with Articles 96, 100 and 116 of the Constitution, as well as Article 10 (and Article 8) of the Convention.

41.  Article 85 of the Constitution and Article 32 of the Law on the Constitutional Court authorise the Constitutional Court to abrogate a legislative or statutory provision that it considers unconstitutional or contrary to a provision having superior legal force. According to the Constitutional Court, in order to establish the scope of fundamental rights enshrined in the Constitution, the international human rights obligations undertaken by Latvia should be taken into account.[9]

42.  The judgment of the Constitutional Court and the interpretation of the respective legal provision provided thereby are binding upon the State authorities. Therefore, even if the Constitutional Court finds a legal provision to be compatible with the Constitution, it may give it a different interpretation than the one previously adopted by the State authorities, thereby remedying the situation in question.[10] The existing case-law of the Constitutional Court demonstrates that the court may find a legal provision unconstitutional not only in case of direct interference with one’s fundamental human rights but also in case where the legislator has failed to fulfil its obligation to ensure a proper protection thereof by putting into place appropriate legal safeguards (see §26 above). Finally, in cases concerning issues of high importance, the Constitutional Court may adopt a decision concerning an individual.[11]

43.  Accordingly, where an applicant invokes a provision of Latvian law as being contrary to the Convention, provided that the right relied on is among those guaranteed by the Constitution, proceedings should be brought before the Constitutional Court, prior to being brought before the Court.[12]  The Government wishes to particularly emphasise that the Constitutional Court constitutes not only an effective domestic remedy[13], but is also a less time consuming remedy than the proceedings before the Court.

44.  The Government observes that in the present case there is no evidence that the applicant had ever contested the constitutionality of the disputed legal provisions by means of an individual constitutional complaint. Neither has the applicant provided any feasible explanation in support of her failure to exhaust the afore-mentioned remedy nor furnished the Court with any ground capable of casting doubt on the effectiveness of such a remedy in general, or in her individual case. 

45.  In this regard the Government would like to point out that the applicant had seven months from the moment of the contested search and seizure (on 11 May 2010) and six months from the final domestic decision (on 14 June 2010) for at least attempting to make a formal use the aforesaid remedy. Thus, one cannot possibly invoke a lack of time, tight deadlines or a haste of the proceedings in order to justify the non-compliance with the requirements of Article 35, paragraph 1, of the Convention in the present case.[14]

46.  Considering what has been stated above, the Government concludes that the present application should be declared inadmissible due to the non-exhaustion of domestic remedies pursuant to Article 35, paragraph 1, of the Convention and dismissed pursuant to Article 35, paragraph 4, thereof.

 

IV.2.2. Merits

47.  Should the Court nonetheless decide to examine the merits of the present application, the Government still maintains that the applicant’s complaint alleging violation of Article 10 of the Convention should be rejected as being manifestly unfounded, or otherwise the Court should declare that there has been no violation of that Article in the present case for the following reasons.

48.  The Government takes note of the well-established Court’s case-law according to which various acts by the State authorities compelling journalists to provide information on their sources or to obtain access to journalistic information, inter alia searches and seizures, constitute interferences with journalistic freedom of expression under Article 10 of the Convention.[15] Accordingly, in the present case it remains to determine whether the interference complied with the requirements of Article 10, paragraph 2, of the Convention.

49.  The Government believes that the interference at issue was prescribed by law, pursued a legitimate aim and was necessary in a democratic society.

IV.2.2.1. Whether the interference was “prescribed by law”

50.  The Government believes that the search of 11 May 2010 had a legal basis in the national law and the law in question satisfied the quality requirement, which derives from the expression “prescribed by law”, in terms of its accessibility and foreseeability.

(a) Basis in domestic law

51.  The Government maintains that the disputed search had legal basis in the domestic law, being based on Article 180, paragraph 3, of the Criminal Procedure Law. Namely, the decision to conduct an urgent search at the applicant’s domicile was adopted by the responsible police investigator and was afterwards authorised by the supervising prosecutor according to the relevant provision of the national law on 11 May 2010. 

52.  On the following day, 12 May 2010, pursuant to Article 180, paragraph 5, of the Criminal Procedure Law the search was authorised by the investigative judge of the Central District Court of the City of Riga, whose decision was later examined and upheld by the President of the same court. 

53.  The procedural requirements for conducting the search were duly observed. Namely, upon the commencement of the search, the State Police officials presented the search warrant to the applicant and issued with its copy. The applicant, who had agreed to voluntary hand over the searched items, was present and observed the course of the search. The search warrant was sufficiently precisely defined and only the items listed therein were seized. The Government notes that the course of the search was described, and all seized items were listed in the search report which was signed by the applicant and the police officials who carried out the search. The applicant was entitled to make her remarks or complaints, inter alia, concerning the alleged prohibition to contact her lawyer, but chose not to do so. All seized items were packed in non-transparent plastic bags and marked with security labels, which remained unopened until the expertise by the Department of Forensic Criminalistics of the State Police was commenced (see §14 above).

54.  Although the applicant had not made any remarks or complaints at the end of the search, the conduct of the police officials in the course of the search at the applicant’s domicile was subsequently examined by the Internal Security Office of the State Police. It was concluded that the respective police officials had acted in compliance with the requirements of Articles 181 and 182 of the Criminal Procedure Law and the basic principles of professional ethics (see §§ 9, 13 and 18 above). In any event, it should be pointed out that the applicant does not complain to the Court under Article 10 of the Convention about the de facto actions of the police officials performing the search. Thus, the Court is precluded from examining this issue in the context of the present case.

 

55.  Accordingly, there are no doubts as to the lawfulness of the impugned search, as well as the actions of the State Police officials conducting the search. Thus, the Government is of the same opinion as the Ombudsman that the interference at issue was prescribed by law.

 

(b) Quality of the law

56.  The Government takes note of the Court’s case-law according to which “the relevant national law must be formulated with sufficient precision to enable the persons concerned – if need be with appropriate legal advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. A law that confers a discretion is not in itself inconsistent with this requirement, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the individual adequate protection against arbitrary interference”. “[I]t may be difficult to frame laws with absolute precision and (…) a certain degree of flexibility may even be desirable to enable the national courts to develop the law in the light of their assessment of what measures are necessary in the interests of justice”. [16]

57.  Also, the Government recalls that “it is primary for the national authorities to interpret and apply domestic law”.[17]

58.  In the present case, the applicant correctly points out that neither Article 180 of the Criminal Procedure Law nor any other provision of the said Law provided for a specific procedure that had to be followed with respect to a search carried out at a journalist’s premises. 

59.  Without prejudice to the fact that the applicant in the present case has not questioned the constitutionality of the said or any other provision of the Criminal Procedure Law (see §§44 and 45 above), the Government has serious doubts as to whether a statutory regulation of the kind is in place in the rest or at least in the majority of the Council of Europe Member States.  

60.  In any event, the Government believes that the procedure envisaged by Article 180 of the Criminal Procedure Law provided for adequate legal safeguards for the applicant to enable an independent assessment of whether the interests of criminal investigation overrode the public interest in protection of journalistic sources.

61.  The Government recalls that pursuant to Article 180, paragraph 1, of the Criminal Procedure Law, as a rule, only an investigative judge or court was competent to authorise a search upon an application by the competent investigative authority. Accordingly, under this general procedure any search, including at a journalist’s business or private premises, was subjected to prior judicial review carried out in the light of principles enshrined in Article 12 of the Criminal Procedure Law (see §23 above).

62.  Meanwhile, paragraph 3 of the said provision provided for an exception from the general rule in case of a particular urgency, which was sufficiently precisely defined. Namely, in case when a delay could result in the relevant documents or objects being destroyed, hidden or damaged, or could cause the person to abscond, a decision to conduct a search could be adopted by the authority responsible for criminal proceedings and had to be authorised by the supervising prosecutor. 

63.  Under both procedures envisaged by Article 180 of the Criminal Procedure Law, the authorising investigative judge and the supervising prosecutor were presented with criminal case file in its entirety, they were obliged to take due regard of all circumstances of the case, and always had to consider the impact of the search on the respective person’s human rights, including freedom of speech, in the light of criteria set out in Article 12 of the Criminal Procedure Law.

64.  It should be pointed out that in cases where the search was authorised under the urgent procedure the supervising prosecutor exercised his/her judicial functions in accordance with Article 1, paragraph 1, of the Law on Prosecutor Office, presenting independent and impartial decision-making body. Moreover, the Constitutional Court had expressly recognised that the Prosecutor Office remained an independent institution offering an effective protection to individuals (…) in cases of alleged violations of procedural and constitutional rights (see §§ 24 and 25 above). 

65.  The Government believes that the system that is in place in Latvia is in no way unusual. In the Government’s opinion, it is rather doubtful whether in all Council of Europe Member States a judge’s or court’s availability is ensured around the clock, thus granting prior judicial review in all cases without any exceptions when a search at a journalist’s private or business premises is being authorised.

66.  In any event, in cases when a search had been authorised by the supervising prosecutor, there was a statutory requirement that a posteriori judicial review by the investigative judge had to follow immediately (paragraph 5 of Article 180). Thus, the legislator had provided for twofold control in cases when the search was performed under the urgent procedure. 

67.  It should be pointed out that the investigative judge had sufficiently wide, binding and enforceable authority to revoke the search warrant. Also, as it had been indicated by the President of the Central District Court of the City of Riga in her decision of 14 June 2010, the investigative judge had a competence and obligation to assess the scope of information seized as a result of the search, namely, whether the information seized could have possibly related to the applicant’s professional activities, provided that the applicant had made the respective allegations. Thus, there existed procedure allowing identifying and withholding from disclosure information that could lead to the identification of journalistic sources other than the information that carried value of evidence for the purposes of the pending criminal proceedings.

68.  Moreover, whether a search had been authorised by the investigative judge or by the supervising prosecutor, in both cases post factum judicial review had been always available.

69.  Given the aforementioned, the Government believes that the circumstances of the present case are fundamentally different from those in the case Sanoma Uitgevers B.V. v. the Netherlands on the account that a statutory obligation of immediate and legally binding a posteriori judicial review by the investigative judge was in place. 

70.  Accordingly, contrary to the applicant who alleged that the interference was not “prescribed by law” on the account that Article 180 of the Criminal Procedure Law was silent concerning the interference with the journalistic privilege of source protection in case of search and seizure, the Government maintains that the law in question was framed with adequate precision and sufficiently clear criteria, to be taken into account when authorising a search under the urgent procedure, were set. On the other hand, the Government believes that it is not possible to draft a law in a way that all situations that could possibly emerge in the future are foreseen, so that specific legal regulation is in place for each particular case. Such approach by the legislature would render the law at issue inoperative and difficult to apply in practice.

71.  Therefore, having regard to the requirements of the Court’s case-law (see §56 above), the Government maintains that the respective legal provisions were not overly broad or unclear or that their accessibility was insufficient.

72.  In any event, the Government believes that the applicant’s allegations about the quality of the domestic law as applied with respect to her are rather directed towards the question whether the interference was “necessary in a democratic society”.[18] Accordingly, the Government will elaborate in more detail the arguments addressing the issue of proportionality.

IV.2.2.2. Whether the interference pursued a “legitimate aim”

73.  The Government disagrees with the applicant that the interference at issue did not pursue a legitimate aim.

74.  The Government recalls that the search at the applicant’s domicile was authorised and performed in the context of the criminal proceedings instituted concerning the fact of allegedly arbitrary access to the State Revenue Service Electronic Declaration System, as a result of which huge amount of personal data had been acquired, processed and distributed. The aim of the proceedings was to protect the rights of individuals and private companies from the interference with their rights under Article 96 of the Constitution and Article 8 of the Convention. 

75.  Accordingly, it must be concluded that the search served a legitimate aim, namely the prevention of crime, that concept encompassing the securing of evidence for the purpose of detecting and prosecuting the crime, and protection of rights of others, i.e. prevention of further disclosure of personal data.

 

IV.2.2.3. Whether the interference was “necessary in a democratic society”

76.  It remains to be examined whether the interference was “necessary in a democratic society”. In assessing whether the interference was proportionate, the following general principles emerge from the Court’s case-law:  

“(a)  The test of “necessity in a democratic society” requires the Court to determine whether the interference corresponded to a pressing social need. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by independent courts. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10.

(b)  The Court’s task in exercising its supervisory function is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they have taken pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole, including the content of the statements held against the applicant and the context in which he or she has made them.

(c)  In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were relevant and sufficient and whether the measure taken was proportionate to the legitimate aims pursued. In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10.

(d)  The Court must also ascertain whether the domestic authorities struck a fair balance between the protection of freedom of expression as enshrined in Article 10 and the protection of the reputation of those against whom allegations have been made, a right which, as an aspect of private life, is protected by Article 8 of the Convention.”[19]

77.  The Government takes note that the right to freedom of expression is not absolute and its exercise must not infringe other rights protected by the Convention, such as the right to respect for private life under Article 8. Given the nature of the conflicting interests, the States must be given a certain margin of appreciation in striking the appropriate balance between those rights.[20]

78.  Given that the obligation under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention requires States to take measures in order to ensure that the private life of  persons within their jurisdiction are respected for, in the present case the competent State authorities were required to balance properly the applicant’s right to freedom of expression, as guaranteed by Article 10 of the Convention, against the right to personal data protection of hundreds of thousands of persons in Latvia, with due regard to the requirements of Article 12 of the Criminal Procedure Law and Article 8 of the Convention.

79.  The Government reiterates that the impugned search took place in the context of the criminal proceedings No.11816003310 investigating allegedly arbitrary access to the State Revenue Service Electronic Declaration System. The search was not intended to establish the identity of the applicant’s source of information concerning the data leak from the EDS database or any other information related thereto. In this connection, the Government recalls that at the time of the search at the applicant’s domicile, the police was already aware both of the applicant’s information source and the way and means by which the respective data had been downloaded. Namely, the alleged perpetrator I.P. had been already identified, searched and apprehended by the police. Neither can it be alleged that the search and subsequent seizure were aimed at identifying or disclosing other sources of information. The search warrant clearly demonstrates that its aim was both to find and seize XML files or their derivatives downloaded from the EDS database, software for processing these files, information concerning acquisition of the respective files, as well as other objects containing information about the criminal offence under the investigation, and to terminate further unlawful dissemination of personal data of hundreds of thousand of persons, being in violation of Article 96 of the Constitution and Article 8 of the Convention. Thus, regard must be had to the nature of the offence under the criminal investigation and the value which the searched objects might have had for this investigation.

80.  The Government submits that prior to accepting the search warrant issued by the police investigator, the supervising prosecutor duly acquainted herself with the criminal case file materials, thus having an informed opinion that the authority responsible for the criminal proceedings had reasonable suspicion that the applicant’s domicile might contain important information (XML files or their derivatives downloaded from the EDS database, software for processing these files, information concerning acquisition of the respective files and other objects containing information about the criminal offence) that might serve as an evidence for the purposes of the criminal proceedings. The applicant was not ordered to disclose her journalistic source of information; instead she was requested to hand over the data storage devices that could possibly serve as evidence. 

81.  The Government recalls that at the initial stage of the criminal proceedings, when the information with unlawfully downloaded personal data was made public, under Article 154 of the Criminal Procedure Law the authority responsible for the criminal proceedings had a possibility of addressing the investigative judge and requesting to order the applicant to reveal her source of information. However, despite the mass downloading and uncontrolled dissemination of the personal data, the competent authorities gave due regard of the principle of proportionality and Article 22 of the Law on Press and Other Mass Media, and it was decided not to perform investigative activities obliging the journalists to reveal their source of information; instead an intensive investigation was continued and the alleged perpetrator was identified by other means. The Government wishes to emphasise that the domestic authorities deliberately chose to pursue more time-consuming course of investigation, thus clearly demonstrating their respect for the freedom of expression and the rights of journalists not to disclose their sources of information. The Government is of the firm view that the competent authorities have adequately balanced the conflicting interests of the protection of journalistic privilege against those of the criminal investigation.

82.  The Government takes note of the Ombudsman’s opinion dated of 28 September 2010 that the search at the applicant’s domicile infringed the applicant’s rights to freedom of expression. At the same time, it should be pointed out that the Ombudsman, when drafting his opinion, did not have any access to the criminal case file materials (see §16 above). Thus, his opinion was based on the presumption that the purpose of the search at the applicant’s domicile had been to establish the alleged perpetrator of the criminal offence and to identify the applicant’s source of information for the purposes of the pending criminal proceedings. The facts of the present case clearly demonstrate to the contrary. Thus, to this extent the circumstances of the present case are different from those in the cases Goodwin v. the United Kingdom, Roemen and Schmidt v. Luxembourg, Voskuil v. the Netherlands and Tillack v. Belgium on the account that the applicant was not compelled to disclose her source of information and that the search in question was not carried out in order to reveal her source of information. 

83.  At the time when the search under the urgent procedure was warranted, the police had established that I.P.’s phone communications with the applicant had commenced and corresponded to the dates when the XML files from the EDS database were downloaded. Thus, the police had reasonable suspicion that the applicant might be connected with the criminal offence at issue and possess data storage devices or documents containing unlawfully downloaded files, software for processing these files, information about acquisition and distribution of these files, as well as other documents and items that could serve as evidence in the criminal proceedings. Given the existing and continuing infringement on persons’ rights, the competent State authorities reasonably considered that it had been necessary to seize the unlawfully downloaded files at the earliest possible convenience in order to exclude both their further illegal processing and human rights violations. 

84.  The Government maintains that prior to opting for the search at the applicant’s domicile the competent State authorities, while balancing the principles enshrined in Article 12 of the Criminal Procedure Law against the State’s duty to comply with its positive obligations under Article 8 of the Convention and 96 of the Constitution, had properly ascertained whether reasonable alternative measures to the search, for example routine examination or seizure, existed for the obtaining of the necessary evidence. Namely, in the light of the aim pursued by the criminal investigation, investigatory activities in locating the objects at issue could not be limited to an examination only, given that pursuant to Article 160, paragraph 6, of the Criminal Procedure Law, in order to ensure that the data were preserved unchanged, instead of routine examination the computerised data processing systems had to be seized. Also, a cyber-technical examination could not be performed by means of routine examination. Further, the owner’s agreement (of the seized objects) was a mandatory requirement for a routine seizure under Article 188 of the Criminal Procedure Law. Yet, in the present case the applicant had already sufficiently clearly demonstrated her negative attitude towards supplying any information to the authorities responsible for the criminal proceedings. Having considered and weighted the pertaining circumstances, the responsible State authorities came to the conclusion that the search was the only available investigatory measure in order to examine the applicant’s data storage devices.

85.  The Government also notes that the particular circumstances of the case, namely, that few hours prior to the search at the applicant’s domicile the police had questioned, searched and apprehended I.P., and specific nature of preservation, acquisition and recording of electronic evidence concerning cyber crimes further contributed to the conclusion by the competent authorities that the search had to be warranted under the urgent procedure. The Government reminds that the information stored in electronic form could be promptly and irreversibly altered or destroyed, thereby encumbering or rendering impossible to prove one’s guilt in the criminal  proceedings, the competent authorities believed that. Thus, in the present case the necessity to conduct the search under the urgent procedure was justified by the need to prevent destruction, concealment or defacement of the evidence.

86.  It should be pointed out that the decision to conduct a search is based on the criminal case file materials and prior to authorising the search under the urgent procedure the supervising prosecutor verifies whether the circumstances justifying it obtain. A post factum review by the investigative judge always follows. The search warrant itself contains information concerning the criminal offence and describes the criminal activities at issue with a reference to the respective provisions of the Criminal Procedure Law, substantiating the lawfulness of the search. At the same time, the search warrant may not contain analysis of concrete materials of the criminal proceedings, since such information may reveal the secret of investigation.

87.  Accordingly, the Government disagrees with the applicant that the materials at the disposal of the State authorities were insufficient to warrant the search under the urgent procedure and that the reasons for the search were not properly reflected.

88.  Given the afore-mentioned, the Government maintains that there were no reasonable and less invasive alternative investigatory means for obtaining the evidence and averting the risk posed; the risk was sufficiently serious and defined to render an urgent search warrant necessary within the meaning of Article 10, paragraph 2, of the Convention.

89.  Regarding the scope of objects seized by the police officials as a result of the search at the applicant’s domicile, the Government points out that the aim of the search could not be possibly achieved by any alternative means other than withholding the applicant’s computer and other data storage devices, since this was the only way to both preserve the respective data unchanged and perform subsequent cyber-technical expertise (see §84 above). Moreover, the search and the scope of the seized objects remained within the limits of the search warrant, which was sufficiently precisely defined and limited the search only to the objects that might be possibly relevant to the criminal offence under the investigation, as well as ensured the necessary safeguards.

90.  Finally, the Government maintains that the compliance with the requirements of Article 375, paragraph 1, of the Criminal Procedure Law was ensured and adequate measures were undertaken in order to guarantee that the materials and information subject to the applicant’s professional secrecy were not examined, revealed and made accessible to the third persons.

91.  The cyber-technical expertise of the applicant’s data storage devices was performed by specially designated expert of the Department of Forensic Criminalistics of the State Police. The expert’s examination was exclusively limited to the object that had to be proved in the course of the criminal proceedings and was unrelated to the applicant’s professional activities, sources of her information or private correspondence. Namely, the information was processed within the limits (questions) indicated in the decision of 14 May 2010 on cyber-technical expertise, using concrete keywords. Prior and after the expert’s examination the seized objects were packed in a purpose-made packaging sealed with special security labels that could not be opened without damaging them. The seized objects were stored in specially protected premises and only the respective expert had an access to them. The “image” copies of the applicant’s data storage devices were saved on the expert’s computer’s hard drive that could be accessed only by the expert himself. Once the expertise was completed, the “image” copies were deleted from the expert’s computer.

92.  In addition, the domestic law (the 29 October 1998 Law on Freedom of Information and the Cabinet of Ministers Regulation No.280 of 26 April 2005 On Procedure for Protection of Information for Official Needs) set precise and clear obligation on the expert concerning the non-disclosure of information that had become known to him while performing official duties and provided both for disciplinary and criminal responsibility in case of breach of the duty of confidentiality and non-disclosure.

93.  To conclude, the Government would like to point out that in the instant case the applicant had never alleged that the State authorities had made use of the seized objects and their contents for any other purpose than to obtain and secure the necessary evidence in the pending criminal proceedings, thus infringing the confidentiality of her sources. Also, the applicant had not claimed that any part of the information contained in her computer or other data storage devices had ever been made public or revealed otherwise, or that she had had any suspicion in that respect.

94.  Accordingly, given the margin of appreciation enjoyed by the Contracting States, the Government considers that there was a reasonable relationship of proportionality between, on the one hand, the restrictions imposed on the applicant’s right to freedom of expression and, on the other hand, the legitimate aim pursued. In addition, the procedural safeguards were adequate to prevent abuse and arbitrariness by the State authorities.

95.  Taking into account the above-mentioned reasons, the Government invites the Court to conclude that the present applicant’s complaint under Article 10 of the Convention is manifestly ill-founded and to reject it pursuant to Article 35, paragraphs 3(a) and 4, of the Convention, or otherwise to declare that there has been no violation of Article 10 of the Convention concerning the search at the applicant’s domicile on 11 May 2010.

96.  Should the Court nevertheless conclude that there has been unjustified interference with the applicant’s right to freedom of expression in the present case, the Government kindly invites the Court to clarify what other measures the domestic authorities could and should have taken (either at legislative or judicial level) in order to both satisfy the requirements of Article 10 of the Convention and to prevent similar violations in future, that would have been less intrusive, but would also have permitted the authorities to fully and comprehensively investigate cyber crimes, to obtain and secure the evidence and to subsequently perform expertise. More specifically, the Government kindly invites the Court to clarify whether in the light of Article 10 of the Convention and existing practices in other Council of Europe Member States, the State has a duty to introduce specific statutory procedure to be followed with respect to a search carried out at a journalist’s premises. 

V. CONCLUSIONS

97.  Taking into account the reasons given above, the Government invite the Court to conclude that:

1)                  The present application should be dismissed as being incompatible with Article 34 of the Convention and Rule 47 of the Rules of Court (incomplete case file).

2)                  The applicant’s complaint under Article 10 of the Convention is inadmissible due to the non-exhaustion of the available domestic remedies and therefore should be rejected in accordance with Article 35, paragraphs 1 and 4, of the Convention, or, alternatively,

3)                  the applicant’s complaint with regard to the alleged violation of Article 10 of the Convention is manifestly ill-founded and therefore should be rejected pursuant to Article 35, paragraphs 3(a) and 4, of the Convention or, alternatively,

4)                  there has been no violation of Article 10 of the Convention in the present case.

Kristīne Līce

Agent of the Government of the Republic of Latvia

Riga, 23 May 2012


[1] Full text of the judgment in Latvian available at: http://www.likumi.lv/doc.php?id=94832; full text in English available at: http://www.satv.tiesa.gov.lv/upload/2004-06-01E.rtf.

[2] Full text of the judgment in Latvian available at:

http://www.satv.tiesa.gov.lv/upload/spriedums_2010_55_0106.htm; full text in English available at: http://www.satv.tiesa.gov.lv/upload/Judgment%202010-56-0106_ENG.htm.

[3] Full text of the judgment in Latvian available at:

http://www.satv.tiesa.gov.lv/upload/2011-17-03%20spriedums.pdf.

[4] Kornakovs v. Latvia (application No.61005/00), judgment of 15 June 2006, §142.

[5] http://www.echr.coe.int/NR/rdonlyres/40C335A9-F951-401F-9FC2 241CDB8A9D9A/0/LORDWOOLFREVIEWONWORKINGMETHODS.pdf 

[6] The Court’s President’s Speaking note for the CDDH meeting on 8 February 2012, page 6.

[7] Selmouni v. France (application No. 25803/94), judgment of 28 July 1999, §74; Akdivar and Others v. Turkey (application No. 99/1995/605/693), judgment of 16 September 1996, §65.

[8] Ibid.

[9] See, e.g., the Constitutional Court’s judgment of 11 May 2011 in the case No.2010-55-0106.

[10] See, e.g., the Constitutional Court’s decision of 8 June 2010 in the case No. 2009-115-01.

[11] See, e.g., the Constitutional Court’s judgment of 30 August 2000 in the case No.2000-03-01.

[12]Grišankova and Grišankovs v. Latvia (application No.36117/02), decision of 13 February 2003; Liepājnieks v. Latvia (application No.37586/06), decision of 2 November 2010, §99.

[13] Ibid.

[14] See a contrario Financial Times LTD and Others v. the United Kingdom (application No.821/03), judgment of 15 December 2009, §44.

[15] See among many others, Roemen and Schmidt v. Luxembourg (application No.51772/99), judgment of 22 February 2003, §47; Voskuil v. the Netherlands (application No.64752/01), judgment of 22 November 2007, §49; Tillack v. Belgium (application No.20477/05), judgment of 27 November 2007, §56; Financial Times LTD and Others v. the United Kingdom (application No.821/03), judgment of 15 December 2009, §56; Sanoma Uitgevers B.V. v. the Netherlands (application No.38224/03), GC judgment of 14 September 2010, §72.

[16] Goodwin v. the United Kingdom (application No.17488/90), GC judgment of 27 March 1996, §§31 and 33.

[17] Tillack v. Belgium (application No.20477/05), judgment of 27 November 2007, §58.

[18]Ukrainian Media Group v. Ukraine (application No. 72713/01), judgment of 29 March 2005, §50; Voskuil v. the Netherlands (application No.64752/01), judgment of 22 November 2007, §52; Tillack v. Belgium (application No.20477/05), judgment of 27 November 2007, §58; Kasabova v. Bulgaria (application No.22385/03), judgment of 19 April 2011, §52.

[19] Kasabova v. Bulgaria (application No.22385/03), judgment of 19 April 2011, §54; Axel Springer AG v. Germany (application No.22385/03), GC judgment of 7 February 2012, §§85-86.

[20] Kasabova v. Bulgaria (application No.22385/03), judgment of 19 April 2011, paragraph 60.

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20

Nē seksuālai vardarbībai!

FotoIzskatās, ka ejam uz to, ka vīrietis ar sievieti varēs iepazīties un ielaisties tikai tad, ja neviens nav ar citu, ja tas notiek ar attiecīgiem noturības solījumiem un liecinieku (eparaksta) klātbūtnē. Paga, nevaru atcerēties, nebija šitāda štelle jau iepriekš izgudrota?
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21

Latvijas Pastu ved uz maksātnespēju

FotoLatvijas Pasta pašreizējā valde (Beate Krauze-Čebotare, Andris Puriņš, Jānis Kūliņš un Pēteris Lauriņš) mērķtiecīgi gremdē Latvijas Pastu.
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21

Donalds Tramps, Ādolfs Hitlers un dzīve uz muļķu kuģa

Foto2016. gadā, pēc referenduma par Lielbritānijas izstāšanos no Eiropas Savienības un Donalda Trampa uzvaras ASV prezidenta velēšanās jēdziens “post patiesība” tik bieži un enerģiski tika lietots un analizēts visā Rietumu pasaulē, ka “Oxford dictionary” to atzina par gada vārdu. 
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21

Cik nopietnas ir Latvijas spējas pretoties Krievijas agresijai?

FotoNesenais Nacionālo bruņoto spēku (NBS) paziņojums, ka “Latvijā drošības situācija ir tikpat stabila un līdzvērtīga tai, kāda ir citās NATO dalībvalstīs, kuras nerobežojas ar krieviju, piemēram, Spānijā, Francijā vai Itālijā”, tautu nevis nomierināja, bet gan lika vēl vairāk satraukties par to, kas īsti valstī tiek darīts aizsardzības spēju stiprināšanā. Tā vietā, lai mierinātu iedzīvotājus ar tukšpļāpību, Polija intensīvi bruņojas. Bet ko šajā jomā dara Latvija?
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6

Vai sabiedrība pieprasīja “cūkskandālu” un Gunāra Astras izsmiešanu?

FotoKļūdījos, domādama, ka Sabiedrisko elektronisko plašsaziņas līdzekļu padomei (SEPLP) ir jelkādas iespējas teikt savu “biezo vārdu”, vērtējot sabiedrisko mediju darbību. Padomes mājaslapā varam vien iepazīties ar 14 punktiem, kas vispārīgi iezīmē padomes darba jomas. Taču pēdējie skandāli un cilvēku neizpratne par sabiedrisko mediju izpausmēm liek uzdot daudzus jautājumus.
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20

Pēc spermas nolaišanas uz krūtīm* progresīvā kultūras ministre ir atradusi jaunu kultūras aktualitāti – iesaistīšanos kultūrā balstītas klimata rīcības draugu grupā

FotoValdība 19. marta sēdē izskatīja Kultūras ministrijas (KM) sagatavoto informatīvo ziņojumu „Par Latvijas Republikas pievienošanos Apvienoto Nāciju Organizācijas (ANO) 1992. gada 9. maija Vispārējās konvencijas par klimata pārmaiņām** Kultūrā balstītas klimata rīcības draugu grupai” un atbalstīja šo iniciatīvu.
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21

Aivars Lembergs nekādus Kremļa naratīvus nav izplatījis, toties LSM darbojas Kremļa interesēs

FotoŠī gada 19. martā portāla lsm.lv publikācijā "Lembergs vaino Latvijas valdību "Krievijas provocēšanā"; viņa teikto lūdz vērtēt Saeimas komisijā” tās autors Ģirts Zvirbulis apgalvo:
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12

Uzmācīgie IRši

FotoPagājušas vien dažas dienas, kopš rakstīju par dažādiem “ķīmiskajiem elementiem”, kas pavada „Jauno vienotību”, un kā vecajā latviešu parunā: “Kā velnu piemin, velns klāt!”
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21

Tas ka, cilvēks par nopelnīto naudu var atļauties nogalināt sava prieka pēc, ir tikai apsveicami!

FotoPazīstu Jāzepu Šnepstu (attēlā) personīgi. Jā, viņš ir kaislīgs mednieks. Dara to dekādēm, dara to profesionāli, legāli un, pats galvenais, selektīvi (atšķirībā no 90% Latvijas mednieku) kuri šauj pa visu kas kustās.
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pietiek_postit

Vai esi gatavs pievienoties MeriDemokrātiem?

FotoĻoti skumji, nē - sāpīgi redzēt, kā pasaule jūk prātā. Burtiski! Romas pāvests sludina politisku vājprātu, psihopātu kliķe okupējusi Kremli Krievijā, draud pasaulei ar atomieročiem (!!!), Eiropas Savienība noslīkusi ciniskā reālpolitismā - sludina demokrātiju, bet ļauj agresorvalsts Krievijas izvarotajai Ukrainai noasiņot.
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Lursoft
Iepriekšējie komentāri un viedokļi Foto

Krūšturis, spiegi un ietekmes aģenti

Kārtīgam padomju produktam ir pazīstamas anekdotes par padomju spiegu Štirlicu, kuru, pastaigājoties pa bulvāri Unter Den Linden zem Berlīnes liepām, nodod pie krūts...

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Sistēmiskā "pareizuma" vieta atbrīvojas

Pēdējo mēnešu mediju refleksijas uz notikumiem politikā veido dīvainu dežavū sajūtu. Lai kā negribētos būt klišejiski banālam, jāteic, ka vēsturei ir cikliskuma...

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Partnerības regulējums stāsies spēkā, tad arī korupcija noteikti mazināsies

Šodien Aizsardzības, iekšlietu un korupcijas novēršanas komisijā uzklausījām Korupcijas novēršanas un apkarošanas biroja (KNAB) un Sabiedrības par atklātību...

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Man izteiktās apsūdzības piesegšanā ir meli

Patiesi sāpīgi bija lasīt, ka Jāzepa Vītola Latvijas Mūzikas akadēmijas (JVLMA) padome izsaka man neuzticību un prasa atkāpšanos. Īpaši sāpīgi –...

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Tā nauda pati iekrita aploksnēs, un tā nebija mūsu nauda, un par aploksnēm mēs neko nezinām, un mūsu darbinieki bija priecīgi saņemt tik mazas algas, kā oficiāli deklarēts!

Reaģējot uz partijas Vienotība biroja bijušā darbinieka Normunda Orleāna pārmetumiem partijai, kas publicēti Latvijas medijos, Vienotība uzsver – partijā nekad nav maksātas aplokšņu algas, un tā stingri iestājas pret...

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Aicinu Saeimas deputātu Smiltēnu pārcelties dzīvot uz Latgali

„Apvienotā saraksta” mēģinājums "uzkačāt" savu reitingu pirms Eiropas Parlamenta vēlēšanām izskatās vienkārši nožēlojami. Neiedziļinoties nedz manu vārdu būtībā,...

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Krievijas apdraudējuma veidi Latvijai 2024. gadā

Pēdējā laikā saasinājusies diskusija par to, kādi militāri riski pastāv vai nepastāv Latvijai. Nacionālie bruņotie spēki (NBS) ir izplatījuši paziņojumu,...

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„Sabiedriskā” medija paustais, ka akadēmijas vadība par kādiem pasniedzējiem ir saņēmusi sūdzības gadiem ilgi, neatbilst patiesībai

Jāzepa Vītola Latvijas Mūzikas akadēmija (JVLMA) ar vislielāko nopietnību attiecas...

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Vai Sanitas Uplejas-Jegermanes atkāpšanās izraisīs būtiskas pārmaiņas sabiedrisko mediju politikā?

Sabiedrisko elektronisko plašsaziņas līdzekļu padomes (SEPLP) locekles Sanitas Uplejas-Jegermanes atkāpšanās norādīja uz divām lietām. Pirmā –...

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„Rail Baltica” projekta problēmu risinājums labākajās ierēdņu tradīcijās

Rail Baltica projekta problēmu risinājums labākajās ierēdņu tradīcijās. Vispirms izveidojam tematisko komisiju, kur gudri parunāt un pašausmināties....

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Es atkāpjos principu dēļ

Šodien, 2024. gada 5. martā esmu iesniegusi Sabiedrisko elektronisko plašsaziņas līdzekļu padomei (SEPLP) paziņojumu par amata atstāšanu pēc pašas vēlēšanās. Saskaņā ar...

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Nacionālā apvienība rosina attaisnoto izdevumu slieksni palielināt līdz 1000 eiro

Nacionālā apvienība (NA) rosina palielināt gada ienākumu deklarācijā iekļaujamo attaisnoto izdevumu limitu no esošajiem 600 eiro...

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Mūsu modeļa krīze

20.gadsimtā pasaule pārdzīvoja vairākas modeļu krīzes – 1917.gada revolūcija bija konservatīvisma krīze (turklāt ne tikai Krievijā), Lielā depresija bija liberālisma krīze, Aukstā kara beigas...

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Pret cilvēku apkrāpšanu – moralizēšana, bet pret politiķu atdarināšanu – kriminālsods

Uzmanību piesaistīja divi ziņu virsraksti. Abi saistīti ar krāpniecību. Taču ar to atšķirību, ka vienā...

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Sakāve un “viens idiots” – ielas nepārdēvēs

Latvijas Universitātes padomes loceklis Mārcis Auziņš ar Mediju atbalsta fonda finansējumu Kas jauns[i] vietnē publicējis viedokli par krievu imperiālistu Andreja Saharova,...

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Nedrīkst Ropažu pašvaldības finanšu problēmas risināt uz darbinieku rēķina

Jau kādu laiku cirkulē baumas, ka tiek organizēta Ropažu novada domes esošās varas nomaiņa. Šīs runas sākās...

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Vai līdz rudenim gaidāms pamiers?

Drīzumā varēs noskaidrot, cik lielā mērā ir patiesas sazvērestību teorijas attiecībā uz Zeļenska un Baidena nerakstītajām sadarbībām. Šo teoriju ticamība izgaismosies tad,...

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Kā saimnieks pavēlēs, tā runāsim! Galvenais - nedomāt!

Portālā Pietiek.com kādu laiku atpakaļ atļāvos publicēt pārdomas par ASV, Izraēlu. Biju pārsteigts, cik daudzi cilvēki lasa šo...