CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 24 octobre 2024

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LATVIA (Application no. 58195/16)             JUDGMENT   STRASBOURG 24 October 2024   This judgment is final but it may be subject to editorial revision. In the case of Rutule v. Latvia, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Stéphanie Mourou-Vikström , President ,   María Elósegui,   Artūrs Kučs , judges , and Martina Keller, Deputy Section Registrar, Having regard to: the application (no.   58195/16) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 4 October 2016 by a Latvian national, Ms Kristīne Rutule (“the applicant”), who was born in 1984 and lives in Riga; the decision to give notice of the complaint concerning the search of the applicant’s apartment, the seizure of her computer, and her inability to access data stored on that computer, to the Latvian Government (“the Government”), represented by their former Agent, Ms   K.   Līce, and subsequently by their current Agent, Ms   E.L.   Vītola, and to declare inadmissible the remainder of the application; the Government’s observations; Having deliberated in private on 3 October 2024, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The case concerns the applicant’s complaints under Article 8 of the Convention regarding a search of her home and the seizure of her computer in the course of criminal proceedings. 2.     The applicant is a legal practitioner. She provided legal services to her clients from her apartment. 3.     On 13 January 2016 criminal proceedings were instituted with regard to suspected forgery and fraud by a third party. On 22   February 2016 an investigator applied for a warrant to search the applicant’s apartment and seize documents and electronic storage devices that might contain information relevant to the above investigation. The request noted that a company and an individual implicated in the above offences were being represented by the applicant in civil proceedings pertaining to the same circumstances as those under investigation, and that the documents sought pertained to a meeting of that company’s shareholders, which had been held at the applicant’s apartment. 4 .     By a decision of 24 February 2016, the investigating judge authorised a search of the applicant’s apartment with a view to “find[ing] and seiz[ing] documents, electronic data storage devices (computers, memory cards, discs and others) that might contain information about contracts concluded between [the implicated company] and [an implicated individual], documents, electronic storage devices (computers, memory cards, discs and others) that might contain information about the meeting of [the implicated company’s] shareholders of [date], as well as other documents and electronic storage devices that might contain information about facts or persons of importance to the investigation and have evidential value in the criminal proceedings no. ...”. 5.     On 9 March 2016 two police officers conducted the search and seized, among other things, the applicant’s computer. The applicant complained to the investigator and requested that her computer be returned or that she be provided with a copy of the data stored on it. She explained that she needed the data to provide legal services to her clients. The investigator denied her request. However, by a decision of 5 May 2016 the supervising prosecutor ordered that the applicant be issued with a copy of any data that was needed in order to provide legal services and was not related to the above criminal proceedings. On 16   May 2016 the applicant gave the investigator a hard drive, which was returned to her on 3 June 2016, the data having been stored on it. The computer itself was returned to the applicant on 16 November 2016. 6.     On 18 March 2016 the applicant lodged a complaint against the authorisation of the search and seizure. By a final decision of 4 April 2016, a judge of the Riga Regional Court rejected the complaint, finding that the warrant had been lawful and well-founded. 7.     On 23 March 2016 the applicant was recognised as a person against whom criminal proceedings had been instituted. According to the latest available information, criminal proceedings are still pending. THE COURT’S ASSESSMENT ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 8.     Before the Court, the applicant alleged that the search of her apartment, the seizure of her computer and the prolonged denial of access to her data had constituted a violation of her rights under Article 8 of the Convention.    Admissibility 9 .     The Government argued that the matter had been resolved when the supervising prosecutor had examined the applicant’s complaint and ordered the investigator to provide her with a copy of the data. At that point, the effects of the alleged violation of her rights had been redressed. The computer had subsequently been returned to her. The present application ought therefore to be struck out of the Court’s list of cases. 10.     They also relied on the same facts to argue that the applicant could no longer claim to be a victim of the alleged violation, within the meaning of Article 34 of the Convention. By ordering the investigator to issue a copy of the data to the applicant, the supervising prosecutor had implicitly recognised that the refusal of her request had been unlawful and that continued denial of access to the data would also have been unlawful. She had thus been afforded redress. 11.     The applicant did not provide any comment in that regard. 12.     The Court reiterates that to be able to conclude that Article   37   §   1   (b) of the Convention applies, it must establish, firstly, whether the circumstances complained of directly by the applicant still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see, among other authorities, Shevanova v. Latvia (striking out) [GC], no. 58822/00, § 45, 7   December 2007). 13.     The applicant challenged the necessity of the search and seizure operation and complained about the disruption to her professional activities that was caused by the lack of access to data that was stored on her computer, including loss of some clients. Thus, although she was eventually provided with a copy of the data, it cannot be stated that the circumstances about which she complained no longer obtained, and, even assuming they did not, it would not appear that redress has been afforded for any of the effects of the alleged violation, in particular the disruption to the applicant’s professional activities.   The Court therefore rejects the Government’s objection in that respect. 14.     The Court reiterates that a measure favourable to the applicant is not, in principle, sufficient to deprive [the latter] of his or her status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention. Only where both these conditions have been satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of the application (see, among other authorities, Selahattin Demirtaş v. Turkey (no. 2) [GC], no.   14305/17, § 218, 22 December 2020). The supervising prosecutor’s decision directly addressed the applicant’s request to be allowed access to the data, but did not address the lawfulness of the search and seizure operation or the inaccessibility of the data prior to the decision. In addition, as noted above, the documents submitted to the Court do not indicate that any redress was afforded to the applicant, in particular as regards the complaints about the disruption to her professional activities. It follows that the Government’s objection in that respect must also be dismissed. 15.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.    Merits 16.     The general principles concerning the lawfulness of search and seizure measures in the context of the right to private life have been summarised in Vinks and Ribicka v. Latvia , no. 28926/10, §§ 92-104, 30   January 2020, Michaud v. France , no. 12323/11, § 130, ECHR 2012; Robathin v. Austria , no.   30457/06, § 44, 3 July 2012, and Leotsakos v.   Greece , no. 30958/13, §§   36-40, 4 October 2018. In the present case, in order to assess whether the interference with the applicant’s right to private life was justified within the meaning of Article 8 § 2 of the Convention, the Court must consider, among other things, the existence, either in law or in practice, of sufficient procedural safeguards against arbitrariness in the context of the lawyer-client relationship (see Kruglov and Others v. Russia , nos. 11264/04 and 15 others, § 137, 4 February 2020). 17.     The Court considers, and this is not disputed between the parties, that the search of the applicant’s apartment, the seizure of her computer and the lack of access to the data stored on that computer constituted an interference with her right to private life within the meaning of Article 8 § 1 of the Convention. Nor do the parties dispute that the interference was “in accordance with the law” and in pursuit of the legitimate aims of preventing crime and protecting the rights of others. However, the parties hold different views as to whether the interference was “necessary in a democratic society”. 18.     The Court observes that the decision by the investigating judge merely stated that the criminal case file gave grounds to suspect that there could be documents and electronic devices in the applicant’s apartment which contained information of evidential value. The investigating judge did not give reasons for these conclusions or evaluate the necessity of the search and seizure operation. The investigating judge also authorised the seizure of “other documents and electronic storage devices that might contain information about facts or persons of importance to the investigation and have evidential value in the criminal proceedings ” (see paragraph 4 above). The reference to “facts or persons of importance to the investigation” is rather vague as there are no clear criteria in the search warrant (e.g., connections to already established facts or evidence) that would have limited the agents who conducted the search and seizure in identifying such facts and persons. Thus, the warrant appears to have been open-ended, essentially allowing the agents to determine its scope themselves, on the basis of their evaluation of whether any unspecified facts or persons might be of interest to the investigation. 19.     It has not been disputed that the applicant was a lawyer providing legal services, that she used the seized computer in her professional activities, and that the computer contained data concerning her clients and the legal services provided to them. The Government indicated that proper examination of data stored on a computer might take several days. However, they failed to provide a reasonable explanation for why, in this particular case, it had been necessary to deprive the applicant of access to her data for a period of almost three months. It is reasonable to conclude that this deprivation of access to data significantly impeded the applicant’s professional activities. It does not appear that the investigating authorities were prevented from expediting the examination of the computer, creating a mirror copy of the data for further examination and returning the computer to the applicant, or, at the very least, providing her with a copy of the data soon after the seizure. 20.     The Court also observes that there were no specific safeguards in domestic law regarding searches of lawyers’ premises and seizure of their documents or data storage devices that would have been applicable to the applicant. The domestic legislation did require prior authorisation for a search and seizure operation from an investigating judge. In the present case, however, the relevant warrant contained no reference to the fact that the applicant, as a lawyer, provided legal services. The domestic authorities were well aware that the applicant provided legal services and was representing, in civil proceedings, third parties who were implicated in the related criminal investigation. Nonetheless, it does not appear that the investigator, the supervising prosecutor, or the judge examining the applicant’s complaint about the search and seizure warrant attached any weight to this fact (compare with Sérvulo & Associados - Sociedade de Advogados, RL and Others v.   Portugal , no. 27013/10, § 99-120, 3 September 2015). 21.     These findings are sufficient for the Court to conclude that a fair balance between the competing interests was not struck in the present case, and that the interference with the applicant’s right to private life was not “necessary in a democratic society”. 22.     There has accordingly been a violation of Article   8 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 23.     In her application form, the applicant claimed 1,000   euros (EUR) in respect of pecuniary damage and EUR 15,000 in respect of non-pecuniary damage. She did not submit any documents to substantiate her claim in respect of pecuniary damage, or any further claim in respect of non-pecuniary damage. 24.     The Government did not comment on this point. 25.     With regard to the applicant’s claim for just satisfaction, initially mentioned in her application form, the Court notes that under Rule 60 of the Rules of Court an applicant is required to submit itemised particulars of all claims, together with any relevant supporting documents, within the time-limit fixed for the submission of his or her observations on the merits. The applicant did not submit a claim for just satisfaction within that time-limit. In the absence of a properly made “claim”, the Court will award just satisfaction of its own motion only in exceptional circumstances ( see Nagmetov v. Russia [GC], no. 35589/08, §§ 57-82, 30 March 2017). As the present case does not appear to be exceptional, the Court considers that there is no call to award the applicant any sum in respect of damages. 26.     The applicant made no claim in respect of costs or expenses. Accordingly, the Court considers that there is also no call to award her any sum in this respect. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that there has been a violation of Article 8 of the Convention; Done in English, and notified in writing on 24 October 2024, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Martina Keller   Stéphanie Mourou-Vikström   Deputy Registrar   President