CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 28 mai 2019

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ESTONIA   (Applications nos. 173/15 and 5 others – see appended list)           JUDGMENT     This version was rectified on 8   October 2019 under Rule 81 of the Rules of Court     STRASBOURG   28   May 2019     FINAL   07/10/2019   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Liblik and Others v. Estonia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Robert Spano, President,   Julia Laffranque,   Valeriu Griţco,   Egidijus Kūris,   Marko Bošnjak   Ivana Jelić,   Darian Pavli, judges, and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 7 May 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in six applications (nos.   173/15, 181/15, 374/15, 383/15, 386/15 and 388/15) 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 four Estonian nationals, Mr Tullio Liblik (“the first applicant”), Mr Kalev Kangur (“the   second applicant”), Mr Toomas Annus (“the third applicant”), Mr   Villu Reiljan (“the fourth applicant”), and two companies, E.L.L.   Kinnisvara AS (“the first applicant company”) and AS Järvevana (“the second applicant company”). 2.     The names of the applicants’ representatives and the numbers and dates of their applications are set out in the Appendix. 3.     The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs. 4.     The applicants complained under Article 6 of the Convention of the excessive length of criminal proceedings against them. In addition, invoking Article 8, the second and the third applicants and the applicant companies alleged that the retrospective justification of secret surveillance authorisations had violated their right to respect for private life and correspondence. 5 .     On 13 September 2017 the Government were given notice of the complaints concerning the length of proceedings and the retrospective justification of secret surveillance authorisations. The rest of the complaints were declared inadmissible pursuant to Rule   54 § 3 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     Details concerning the applicants can be found in the Appendix. 7.     The facts of the case, as submitted by the parties, may be summarised as follows. A.     General overview of criminal proceedings against the applicants 1.     Secret surveillance of the third applicant during previous criminal proceedings 8 .     From 2 September 2004 until 2 January 2005 secret surveillance activities were carried out with respect to the third applicant in the context of ongoing criminal proceedings. The proceedings were later terminated without the applicant being prosecuted. On 4 December 2006 the information obtained via the secret surveillance in those proceedings was put in the surveillance file ( jälitusprotokoll ) of the criminal proceedings under review in the present case. 2.     Pre-trial proceedings in the present case 9.     The criminal proceedings under review in the instant case were instituted on 18 August 2005 without the applicants being informed of the proceedings. Those proceedings concerned suspicions of high ‑ level corruption as regards the exchange of plots of land in conservation areas for plots in areas where development was permitted. 10.     Between 23 August 2005 and 11 October 2006 the Internal Security Service ( Kaitsepolitsei ) carried out various surveillance activities in respect of the first applicant, the second applicant and the third applicant (with respect to the third applicant, the surveillance activities commenced on 16   December 2005). The third applicant was also acting as a member of the supervisory board of the two applicant companies at the material time. In the course of those activities, communications between the fourth applicant and the persons under surveillance were covertly intercepted and listened to. 11 .     The surveillance activities were based on authorisation decisions issued by either a prosecutor (forty-four authorisations altogether in respect of covert observation and requests for communication data) or by a preliminary investigation judge (twenty-one authorisations altogether in respect of covert listening in on conversations and the interception of communications). 12 .     The authorisation decisions issued by (different) preliminary investigation judges provided general reasons as to why the judges considered the secret surveillance necessary. As an example, one authorisation read as follows: “The judge has acquainted himself with the material gathered during the criminal proceedings and is convinced that the prosecutor’s application is justified. The Code of Criminal Procedure allows for evidence to be gathered by means of secret surveillance. Considering the gravity of the offence, the interests of protecting the legal order, and the fact that gathering evidence by other procedural means is either impossible or especially complicated, then, in the interests of elucidating the truth, the application is perfectly justified and lawful.” The other authorisations by preliminary investigation judges included variations of the same wording, occasionally also including references such as “when public officials abuse their position, it damages their credibility in the eyes of society and damages the State’s reputation” and “[t]his offence belongs to the category of offences relating to office. ... Considering that ..., this type of offence is difficult to discover and prove, and [such offences] hamper the legal rights of all people”. The relevant prosecutors’ decisions contained no reasoning at all. 13 .     In addition to surveillance activities, during the pre-trial proceedings, there were various queries, inspections, and home and office searches; (forensic) expert reports were ordered, requests for documents were made to various persons, and the material received was examined. Between 3   October 2006 and 12 November 2007, 202 persons (witnesses and suspects) were interviewed, some of them repeatedly. Between 17 March 2008 and 24 March 2008 the prosecutor’s office invited the applicants to inspect a copy of the criminal file (comprising 191 volumes altogether). The applicants’ representatives submitted different applications concerning the time they needed to inspect the files, ranging between six and ten months. By an order of the Office of the Prosecutor General of 13 May 2008, the applicants were given until 3 November 2008 to inspect the criminal file. Their representatives (except the first applicant’s counsel) submitted requests to the Office of the Prosecutor General, asking it to remove the material which the prosecution did not intend to rely on from the criminal file, and to specify which evidence was intended to prove which facts. The Office of the Prosecutor General dismissed those requests, explaining that the applicants had been presented with all the material gathered during the pre-trial proceedings so that they could assess which material was relevant from the perspective of defence rights. 14.     During the pre-trial proceedings, the second applicant discovered a surveillance device in his office on 25 September 2005. On 3 October 2006 the offices of the third applicant, the second applicant company and the first applicant were searched, and on 20 September 2007 the premises of the first applicant company were searched. On 16 October 2007 the fourth applicant was questioned as a suspect. 15 .     As two of the accused – the fourth applicant and E.T. – were members of the Riigikogu (the Estonian Parliament) at the time the pre-trial proceedings were completed, the consent of a majority of the Members of Parliament had to be obtained to lift their immunity and bring charges against them. The Office of the Prosecutor General initiated the relevant procedure on 12 December 2008, and Parliament gave its consent on 24   March 2009. 16.     Altogether, the pre-trial proceedings lasted three and a half years and ended on 31 March 2009 when the statement of charges against the applicants was submitted to the trial court. None of the applicants claimed that there had been periods of inactivity or other significant interruptions as regards the pre-trial proceedings. 3.     Proceedings before Harju County Court 17 .     From May 2009 onwards the Harju County Court heard the case over a total of ninety-two hearing days. During that time, numerous witnesses were heard: eighty witnesses requested by the prosecution, twenty-eight witnesses requested by the defence, and two people summoned by the court as experts. In May 2009 dates for hearings in November and December 2009 and January, February, April, May and June 2010 were scheduled. Further dates were scheduled in February 2010 (for dates in September and October 2010), in June 2010 (for dates in December 2010 and February and April 2011), in April 2011 (for dates in October, November and December 2011), in November 2011 (for dates in December 2011 and January, February, April and May 2012), in December 2011 (for dates in January and February 2012), and in February 2012 (for dates in March 2012). At the request of some representatives, hearings were not scheduled to take place more than three days a week. The court also took into account the representatives’ wishes that hearings not be scheduled too far in advance, as they were simultaneously involved in other criminal proceedings and therefore not always available. At the end of each hearing day, considering the evidence that was to be examined the following day, the court determined which of the accused and their representatives should appear at court the following day. This allowed persons who were not concerned by such evidence not to attend the particular hearing. Occasionally, hearings had to be rescheduled owing to illness or owing to other personal circumstances of either the accused or their representatives. In November 2009 the court noted that there was a risk that the proceedings might take too long, and decided that the number of witnesses to be heard each day must be increased. 18 .     An application was made to separate the first applicant’s case from the case against two other accused (including E.T.), but the representatives of the second and the fourth applicants objected to the first applicant’s case being separated in this way. They submitted that the cases were closely linked, and argued that separating the cases would hinder defence rights and force them to attend other parallel proceedings at the same time. The court dismissed the application to separate the case, referring to the need to guarantee the defence rights of the other accused. 19.     By a judgment of 19 June 2012 the Harju County Court acquitted the applicants of the charges against them. The proceedings before the first-instance court lasted approximately three years and three months. The court found that the surveillance activities had been unlawful and that all the evidence collected by such activities was inadmissible. It did not address the question of whether or not the secret surveillance authorisations in the case had been sufficiently reasoned at the time they had been issued. 4.     Proceedings before the Court of Appeal 20.     The Office of the Prosecutor General appealed to the Court of Appeal on 4 July 2012. Among other things, it challenged the first-instance court’s assessment of the lawfulness of the surveillance activities. 21 .     On 13 July 2012 the Tallinn Court of Appeal invited the applicants to notify it of suitable dates in October, November and December 2012, so that hearings could be scheduled. As no dates suitable for everyone could be found out of the dates proposed by the applicants’ representatives, the court invited them to propose new dates for 2013. On 17 August 2012 the dates were set for January and February 2013. In the meantime, the Court of Appeal had also granted an application by the prosecutor for a review of the lawfulness of the surveillance activities. It asked for the surveillance files, including all the prosecutors’ and preliminary investigation judges’ decisions authorising the secret surveillance, to be sent to it. 22.     The Court of Appeal convicted the applicants by a judgment of 19   June 2013. After examining the surveillance files, the court found that the prosecutors’ applications for authorisation of secret surveillance had contained sufficient information to assess the need for such activities. It considered that the surveillance activities had been lawful and the evidence thereby obtained admissible. In convicting the first and the second applicant companies, the court relied on Article 14 of the Penal Code (see paragraph 56 below) and found that the third applicant had acted in the interests of the two companies. 5.     Proceedings before the Supreme Court 23.     Between 17 and 19 July 2013 all of the applicants lodged appeals on points of law with the Supreme Court. 24.     On 17 December 2013 the Supreme Court granted the applicants leave to appeal. On 22 January 2014 it gave the parties a deadline of 19   March 2014 to submit their observations. In the meantime, the Supreme Court had asked for the surveillance files to be forwarded to it. On 10 April 2014 it was decided that the case would be transferred to the full panel of the Criminal Chamber, and the parties were given an additional deadline of 28 May 2014 to submit their observations. 25.     On 30 June 2014 the Supreme Court delivered its judgment in the applicants’ criminal case (no.   3 ‑ 1 ‑ 1 ‑ 14 ‑ 14). It considered the evidence gathered by means of secret surveillance to be admissible. In substance, it upheld the applicants’ conviction. B.     Reasoning of the Supreme Court 1.     Length of proceedings 26.     In assessing whether the length of the proceedings had been reasonable, the Supreme Court relied on the criteria established in the Court’s case-law. 27 .     As for the period to be taken into account, the Supreme Court considered that the relevant period had not necessarily started running from the date when the first steps in the criminal proceedings had been taken, but rather when the applicants could be considered to be subject to a “charge”, or when they had been otherwise substantially affected by actions taken by the prosecuting authorities. The Supreme Court did not agree that the relevant period should be calculated from the date when the first secret surveillance activities had been carried out with respect to the applicants. This also applied to the third applicant and the applicant companies, who had suggested that the start date of the surveillance activities – carried out as of 2 September 2004 with respect to the third applicant in different criminal proceedings which were later terminated – should be taken as a starting point (see paragraph 8 above). 28 .     Against that background, the Supreme Court considered that the beginning of the relevant time period should be determined as follows: 25   September 2005 for the second applicant (when he had discovered a surveillance device in his office); 3 October 2006 for the first applicant (when his office had been searched); 3 October 2006 for the second applicant company and the third applicant, in relation to certain criminal incidents (when the premises of the company, including the office of the third applicant, had been searched); 20 September 2007 for the first applicant company and the third applicant, in relation to other criminal incidents (when the premises of the company had been searched); and 16   October 2007 for the fourth applicant (when he had been questioned as a suspect). 29.     The proceedings ended on 30 June 2014 when the Supreme Court judgment was adopted and became final. This meant that the criminal proceedings had lasted: eight years, nine months and five days with respect to the second applicant; seven years, eight months and twenty-eight days with respect to the first applicant, the second applicant company and the third applicant (in relation to certain criminal incidents); six years, nine months and eleven days with respect to the first applicant company and the third applicant (in relation to other criminal incidents); and six years, eight months and twenty-one days with respect to the fourth applicant. 30.     When assessing whether the proceedings had been excessively long, the Supreme Court firstly observed that the case had been rather complex as regards the issues of law, and very complex from an evidentiary perspective. Nine persons had been accused, two of whom had been Members of Parliament whose immunity had had to be lifted (see paragraph 15 above). Complex schemes had been used to commit the offences in question, and the activities of the accused had involved a high level of conspiracy. This had made the collection of evidence concerning the offences difficult and the analysis of the (circumstancial) evidence time-consuming. Numerous witnesses had been heard during the pre-trial proceedings and in court (see paragraphs 13 and 17 above). The proceedings before the court of first instance had entailed hearings over the course of ninety-two days, and this also indicated how many questions had needed to be addressed and how complex the questions had been. 31 .     Secondly, the Supreme Court stated that there had been no delays during the pre-trial and trial stage of the proceedings. Rather, the lower courts had attempted to guarantee that the proceedings would not last an excessively long time. Some procedural flexibility had been lost due to the fact that the first-instance court had allowed the accused who had not been directly concerned by particular questions and evidence to be absent from the hearings altogether (see paragraph 17 above). At the same time, this had alleviated the effect of the proceedings on the accused, and had therefore been justified. The Supreme Court admitted that the organisation of the court hearings at first instance (not planning hearings sufficiently far in advance and not deciding on procedural matters quickly enough, thus allowing for long disputes between the parties), the volume and structure of the criminal file, and the presentation of the statement of charges (which had entailed unnecessary repetition and the structure of which had been illogical to some extent) might have added to the duration of the proceedings. However, the court noted that the defence representatives had opposed hearings being planned in advance, and in that regard they too had to be considered responsible. Furthermore, although it might have been reasonable for the prosecution to remove some of the material from the criminal file, the Supreme Court also considered that it had been for the defence representatives and not for the prosecution to decide whether some of the evidence in the criminal file was relevant from the perspective of the defence. The presentation of the statement of charges had not hindered defence rights either. As for separating the criminal case of E.T. from the rest of the criminal proceedings (see paragraph 79 below), the Supreme Court considered that this had related to only one of the charges against the third applicant and the first applicant company, and the latter’s counsel had not objected to the separation. Accordingly, the decision not to separate the case of E.T. from the rest of the proceedings could not be considered justified. In conclusion, the Supreme Court found that although some time might have been lost owing to the above-mentioned issues, the overall loss of time had been relatively insignificant in the context of the total duration of the proceedings. 32 .     Thirdly, the Supreme Court considered that the applicants had not prolonged the proceedings. In that regard, it noted that the defence representatives could not have been expected to preventively clear their timetables for possible appeal hearings in autumn 2012. Therefore, the fact that, at the appeal stage, hearings had only taken place six months after the Court of Appeal had started planning the relevant dates (see paragraph 21 above) could not be held against the applicants. Although the applicants could not be reproached for the fact that hearings had had to be cancelled or adjourned owing to their health and other personal reasons (see paragraph 17 above), such delays could not be attributed to the State either. 33 .     The Supreme Court admitted that the impact of the proceedings on the applicants had undoubtedly been serious, especially given the significant public interest in the case. At the same time, the court considered that other than the two months and nineteen days that the second applicant had spent in detention, and the two days when the first applicant had been under arrest, the applicants had not been detained. Moreover, on 17 February 2010 the first-instance court had annulled a restriction imposed on the first, the second and the third applicants not to leave their place of residence. 34 .     Assessing all those circumstances, the Supreme Court found that the proceedings, although close to being excessively lengthy, had still been concluded within a reasonable time. 2.     Regulation of secret surveillance 35 .     The Supreme Court noted that secret surveillance interfered with people’s right to privacy, and that the principle of ultima ratio served the purpose of ensuring the proportionality of such interference. 36.     The Supreme Court then addressed the preliminary investigation judges’ decisions authorising the surveillance activities. Firstly, it noted that, in accordance with Article 145 of the Code of Criminal Procedure ( Kriminaalmenetluse seadustik , hereinafter “the CCrP”, see paragraph 49 below) all court decisions, including decisions authorising secret surveillance activities, had to be reasoned. That meant that, in accordance with Article 110 § 1 of the CCrP (see paragraph 45 below), authorisation decisions had to contain reasoning as to why the issuing court found that there was probable cause to believe that an offence had been committed, and why it was impossible, or especially complicated, to collect evidence by other means (the principle of ultima ratio ). That reasoning could not be merely declaratory. The necessary reasoning could, however, rely on general criminological knowledge, for example knowledge concerning the nature of organised crime, the high level of conspiracy involved in the case in question, a presumed lack of witnesses willing to give statements, and so on. In any event, the reasoning had to be linked to the evidence in that particular case. Owing to time pressure and the likely fragmentary nature of information available at the time, the duty to provide reasons was less extensive when authorising secret surveillance than when deciding to convict a person. 37 .     The Supreme Court then noted that the preliminary investigation judges’ decisions (see paragraph 12 above) had not complied with the requirement of being reasoned. However, the lack of reasoning did not amount to a lack of authorisation, and did not mean that the surveillance activities had been conducted arbitrarily and beyond judicial control. This was so because the investigating authority was not competent to assess the adequacy of reasoning. It had the right to rely on the operative part of a decision authorising surveillance activities. Therefore, the failure to give proper reasons for a decision authorising surveillance activities did not result in the inadmissibility of evidence thereby collected. The Supreme Court reasoned that it was not only during the authorisation stage that the ultima ratio nature of the secret surveillance measures could be examined. In fact, regardless of the existence of earlier decisions authorising surveillance activities, courts subsequently hearing a criminal case also had an obligation to examine whether the substantive conditions for granting the authorisation decisions had been fulfilled at the time the decisions had been issued. If necessary, the courts could then declare the evidence thereby obtained inadmissible. A lack of requisite reasoning in an initial authorisation decision required the subsequent examination to be conducted with special diligence. 38 .     The Supreme Court went on to note that it had directly examined the material in the surveillance file, including the prosecutors’ applications for authorisation of surveillance activities. Based on that material, it had concluded that the substantive conditions for authorising surveillance activities had been fulfilled at the time the authorisation decisions had been issued. The Supreme Court was convinced that at that time there had been probable cause to believe that offences had been committed, and that it had been impossible to collect evidence by other means to verify that suspicion. In support of its findings, the Supreme Court referred to the nature of the crimes and the high level of conspiracy involved, and considered that it was unlikely that written or electronic evidence could have been collected or that witnesses could have been found without the proceedings being jeopardised. 39 .     With regard to the reasoning in the prosecutors’ decisions to authorise surveillance activities, the Supreme Court observed that, despite the requirement – deriving from Article 145 of the CCrP – that such decisions also had to be reasoned, they contained only an operative part and no reasoning at all. It then reiterated its position outlined above regarding the decisions issued by a preliminary investigation judge authorising surveillance activities. The Supreme Court concluded that the conditions set out in Article 110 of the CCrP had been fulfilled at the time the decisions had been issued. 40 .     As the third applicant had raised the question of the compatibility of the regulation of secret surveillance with the Constitution and the Convention, the Supreme Court – also acting as a constitutional review court – analysed the regulation of the CCrP (the limitations as regards offences in respect of which secret surveillance could be conducted, the principle of foreseeability, and the permitted duration of surveillance). It found that the relevant regulation was constitutional. The Supreme Court also concluded that, in the particular circumstances of the case, the duration of the surveillance activities with respect to the second and the third applicants had not been excessively lengthy. 3.     Dissenting opinion of Judge Kergandberg 41 .     Judge Kergandberg addressed the requirement to provide reasons for decisions authorising secret surveillance. He found that the Supreme Court had altered its earlier practice by “if not 180 degrees, then 160 degrees” by accepting that the lack of reasoning in the relevant decisions could not be equated to a lack of authorisation. Up until that judgment, it had been established case-law that, in accordance with Article 111 of the CCrP, violating the ultima ratio principle when issuing secret surveillance authorisations also inevitably meant that the evidence thereby obtained was inadmissible. In the instant case, the Supreme Court had distinguished between “granting authorisation for secret surveillance activities” and “obtaining evidence via secret surveillance activities”, and had stated that a violation of law during the authorisation stage could not affect the admissibility of evidence. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Relevant domestic law 1.     The Constitution of the Republic of Estonia 42.     Article 25 of the Constitution of the Republic of Estonia ( Eesti Vabariigi põhiseadus ) provides that everyone is entitled to compensation for intangible as well as tangible harm that he or she has suffered because of the unlawful actions of any person. 2.     The Code of Criminal Procedure (a)     Regulation of secret surveillance as in force until 1 January 2013 43.     The CCrP, as in force at the relevant time, provided as follows. 44.     In accordance with Article 9 § 4, interference with a person’s private and family life was permitted only in the cases provided for in the CCrP and pursuant to the procedure provided for in that Code, in order to prevent a criminal offence, apprehend a criminal offender, ascertain the truth in a criminal matter, or secure the execution of a court judgment. 45 .     Article 110 § 1 provided that the collection of evidence by surveillance activities was permitted in criminal proceedings if the collection of evidence by other procedural acts was impossible or especially complicated and the object of the criminal proceedings was a first-degree criminal offence or an intentionally committed second-degree criminal offence where a punishment of three years’ imprisonment or more was within the relevant sentencing range. 46.     Article 111 provided that information obtained via secret surveillance was evidence when the requirements of law had been followed when obtaining it. 47 .     Article 112 § 3 in conjunction with Articles 116, 118 and 119 provided that a preliminary investigating judge had to authorise the carrying out of surveillance activities such as the covert examination of postal or telegraphic items, wiretapping, or the covert observation of messages or other information transmitted by the public electronic communications network for the staging of a criminal offence. In accordance with Article 114 § 1, a preliminary investigation judge had to examine a prosecutor’s reasoned application for authorisation of secret surveillance immediately, and give a decision granting or refusing authorisation to carry out the surveillance activities. 48 .     Article 112 § 3 in conjunction with Articles 115 and 117 provided that a prosecutor’s authorisation was needed for covert surveillance, the covert examination and replacement of items, or the collection of information about messages transmitted by the public electronic communications network. 49 .     The requirements applicable to procedural decisions were set out in Article 145. Among other things, a procedural decision had to be given in writing and be reasoned. 50 .     Under Article 228 § 1, a party to criminal proceedings as well as a person who was not party to proceedings had a right, before the relevant statement of charges was prepared, to lodge an appeal with the prosecutor’s office against a procedural action or order of an investigating body if he or she found that a violation of procedural requirements in the performance of a procedural action or in the preparation of an order had resulted in his or her rights being violated ( uurimiskaebemenetlus ). Under Article 228 § 2, before the statement of charges was prepared, the same persons had a right to appeal to the Office of the Prosecutor General against an action or order of the prosecutor’s office. 51 .     Article 230 § 1 provided that if the activities of an investigating body or prosecutor’s office violating a person’s rights were contested, and the person did not agree with the order prepared by the Office of the Prosecutor General reviewing the appeal, the person had a right to file an appeal with the preliminary investigation judge of the county court in whose territorial jurisdiction the contested order had been prepared or the contested procedural action had been taken. (b)     Regulation of secret surveillance as in force from 1 January 2013 52.     On 1 January 2013 the regulation of the former Surveillance Act (see paragraph 54 below) was merged with the CCrP, and the regulation of the notification procedure for secret surveillance activities was amended. 53 .     Article 126 1 § 4 provides that   information obtained by secret surveillance activities is evidence if an application for surveillance activities, grant of authorisation for surveillance activities, and the conduct of surveillance activities is in compliance with the requirements of law. 3.     The Surveillance Act 54 .     Section 18 of the Surveillance Act ( Jälitustegevuse seadus ), in force until 1 January 2013, provided that, upon surveillance activities being carried out, anyone could lodge a challenge ( vaie ) against the activities of a surveillance agency with the head of the surveillance agency or the superior agency of the surveillance agency, or lodge a complaint with a prosecutor’s office. Anyone had the right of recourse to a court pursuant to the procedure prescribed by law if his or her rights and freedoms had been violated by a surveillance activity. 4.     The Act on Compensation for Damage Caused in Criminal Proceedings 55.     The Act on Compensation for Damage Caused in Criminal Proceedings ( Süüteomenetluses tekitatud kahju hüvitamise seadus ) entered into force on 1 January 2015. The relevant provisions of the Act provide as follows: Section 7. Compensation for damage regardless of the final outcome of criminal proceedings “(1)     If a body conducting proceedings is at fault for violating procedural law and thereby causes damage to a person, the person has a right to demand compensation for such damage, regardless of the final outcome of the criminal proceedings in which the damage was caused to [him or her]. (2)     A body conducting proceedings is released from liability if it proves that it is not at fault for causing the damage. (3)     If the damage specified in subsection (1) of this section is caused by a court, the State is liable, pursuant to the State Liability Act. ...” Section 11. Compensation for non-pecuniary damage “... (2)     An individual is compensated for non-pecuniary damage on the basis of section 7 of this Act only if: the person was deprived of [his or her] liberty; he or she was tortured or treated in an inhuman or degrading manner; damage was caused to his or her health, the inviolability of his or her home or private life was violated; the confidentiality of his or her messages was violated; or his or her honour or good name was damaged in criminal proceedings. Fault on the part of a body conducting proceedings does not constitute a prerequisite for compensation for non-pecuniary damage if the person was tortured or if he or she was treated in an inhuman or degrading manner in violation of procedural law. (3)     Non-pecuniary damage is presumed. Monetary compensation is awarded for non-pecuniary damage to the extent that [such damage] cannot be remedied by other means, including by [a person] admitting a mistake and making an apology. ...” Section 23. Implementation of the Act “... (3)     If this Act prescribes compensation for damage caused in criminal proceedings in a case not covered by the Act on Compensation for Damage Caused to a Person by the State through Unjust Deprivation of Liberty, this Act shall apply retroactively. (4)     An application for compensation for damage specified in subsection (3) of this Act shall be submitted to a prosecutor’s office or a body conducting extrajudicial proceedings. The application shall be submitted within the time period prescribed in the Code of Administrative Court Procedure for the submission of actions for compensation, and no later than three years from the entry into force of this Act. The adjudication of the application shall comply with the provisions of Division 2 of Chapter 4 of this Act. (5)     An administrative court, the Court of Appeal and the Supreme Court [may] adjudicate appeals concerning compensation for damage on the grounds provided for in this Act only if an administrative court has accepted the appeal concerning compensation for damage.” 5.     The Penal Code 56 .     Article 14 § 1 of the Penal Code ( Karistusseadustik ) states that in circumstances provided for by law, a legal entity may be held responsible for an act which is committed in its interests by its board, by one of its members, or by one of its senior officials or competent representatives. Article 14 § 2 adds that the prosecution of a legal entity does not preclude the prosecution of the individual who committed the offence. B.     Relevant domestic case-law 1.     Insufficient reasoning and ex post facto review of lawfulness (a)     Judgments predating the Supreme Court judgment in the present case 57 .     The Supreme Court acknowledged in its judgment of 5 December 2008 in case no. 3-1-1-63-08 that secret surveillance measures of which the persons subject to the measures were unaware had the potential to interfere with fundamental rights more severely than any other investigative measures. Against that background, the legislature had created a system of safeguards. The central part of those safeguards was the requirement that measures which interfered with fundamental rights particularly severely (those mentioned in Articles 116, 118 and 119 of the CCrP) be taken only when authorised under Article 114 of the CCrP by a preliminary investigation judge. The same observation was reiterated in judgment no.   3 ‑ 1-1-10-11, dated 1 July 2011. The Supreme Court also stressed that all parties to criminal proceedings had to have the opportunity to verify whether the requirements of the law had been followed when evidence had been obtained via secret surveillance. Courts could therefore not dismiss an application to review the lawfulness of surveillance measures. This did not exclude the possibility of courts conducting such a review of their own motion, if the relevant suspicion arose. In the course of the review, the domestic courts had to verify, first and foremost, whether the required authorisations had existed, and whether the evidence had been obtained via authorised measures and within the authorised time period. The courts’ obligation to conduct a review of the lawfulness of secret surveillance activities was also stressed in the Supreme Court’s judgments no.   3 ‑ 1 ‑ 1 ‑ 81 ‑ 08, dated 23 February 2009, and no. 3-1-1-31-11, dated 28   April 2011. 58 .     In judgment no. 3-1-1-31-12, dated 21 May 2012, the Supreme Court emphasised that the preconditions set out in Article 110 § 1 of the CCrP were meant to protect the private life of a suspect as well as an accused’s right of defence during court proceedings. 59 .     The Supreme Court judgment of 1 July 2011, no. 3-1-1-10-11, focused on the possibility of using evidence obtained via secret surveillance within one set of criminal proceedings in the context of other criminal proceedings. The Supreme Court found that such evidence could be used, provided that the requirements of Articles 110, 112, 113, and 114 of the CCrP had been followed. The Supreme Court stressed that in such a scenario the courts also had to conduct an ex post facto review in the framework of the new criminal proceedings, in order to verify whether the evidence had been obtained lawfully and in accordance with the ultima ratio principle. 60 .     In judgment no. 3-1-1-22-10 of 26 May 2010, the Supreme Court considered that authorisation of secret surveillance that had been granted orally rather than in writing had been unlawful, and the evidence thereby obtained could not be admitted. It stressed that granting the authorisation orally inevitably meant that the preliminary investigation judge had not familiarised himself with the written documents forming the basis of the application for authorisation. This, in turn, made it more difficult, if not impossible, for the court to verify whether the preconditions, including the ultima ratio principle, set out in Article 110 of the CCrP had been met. 61 .     In judgment no. 1-12-2761 of 20 January 2014, the Tartu Court of Appeal noted that although, in accordance with Article 145 of the CCrP, decisions authorising secret surveillance had to be reasoned, there had so far been no guidance from the Supreme Court concerning requirements that the reasoning had to satisfy. The Tartu Court of Appeal found that an authorisation decision could not be based on merely declaratory statements, and its findings (including with regard to the ultima ratio requirement) had to be linked to concrete evidentiary material. In any event, it was unacceptable for authorisation merely to refer to a prosecutor’s application and state that the judge considered it justified. The court stressed that the more possibilities the State had to interfere with persons’ fundamental rights, the more responsible the State had to be in order to avoid unwarranted interferences. In this case, the Tartu Court of Appeal agreed with the reasoning of the first-instance court, finding that the authorisation decisions in the case at hand had not been sufficiently reasoned and had not satisfied the ultima ratio requirement. The surveillance activities had therefore been unlawful and the evidence thereby obtained inadmissible. That judgment became final on 19 February 2014. Based on the findings in that case, the applicant lodged a claim for damages (see paragraph 69 below). (b)     Judgments postdating the Supreme Court’s judgment in the present case 62 .     Case no. 3-1-1-68-14 concerned a situation where criminal proceedings had been terminated without a statement of charges being submitted to a court. The person who had been subject to secret surveillance had been notified of this and had been provided with access to the surveillance documents, including the authorisations to conduct secret surveillance. Following that, the person had lodged an appeal, asking for those surveillance activities to be declared unlawful. In its judgment of 16   December 2014, the Supreme Court found that there had been insufficient reasons for the surveillance activities, despite the fact that they had been authorised by a preliminary investigation judge under Article 110 of the CCrP. Referring to its recent judgment in case (no. 3-1-1-14-14), the Supreme Court went on to explain that insufficient reasoning, albeit in breach of a procedural requirement, did not automatically render surveillance activity itself unlawful. The court examining the criminal case or complaint challenging the decisions authorising the surveillance activity (as in the instant case) was obliged, despite the existence of previous authorisation, to verify whether the material requirements set out in Article   110 of the CCrP had been satisfied. After analysing the reasoning provided in the authorisation decisions and examining the relevant criminal file, the Supreme Court concluded that the authorisations had not been in accordance with the ultima ratio principle, and thus had been unlawful. 63 .     In judgment no. 3-1-1-3-15 of 6 April 2015, the Supreme Court also analysed whether the ultima ratio principle had in fact been followed, despite an authorisation for secret surveillance having insufficient reasoning. The court took into account the nature of the offence in question, the way in which the investigating authorities had become aware of the potential criminal activities, the suspect’s characteristics and the little likelihood of finding witnesses, and came to the conclusion that the ultima ratio requirement had been satisfied, and in that regard the evidence obtained via secret surveillance had been admissible. 64 .     The obligation to carry out an ex post facto review of the lawfulness of secret surveillance authorisations, despite their having insufficient reasoning, was also emphasised in the Supreme Court judgment in case no 3-1-1-79-16, dated 5 December 2016. In this case, the central question was whether at the time of authorising the secret surveillance there had been sufficient grounds to believe that an offence had been committed. The Supreme Court stressed that a mere conclusion that authorisation decisions did not contain sufficient reasoning did not free a trial court f