FOURTH SECTION
 
 
 
 
 
 
CASE OF MEIMANIS v. LATVIA
 
(Application no. 70597/11)
 
 
 
 
 
 
 
JUDGMENT
 
 
 
 
STRASBOURG
 
21 July 2015
 
 
FINAL
 
21/10/2015
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Meimanis v. Latvia,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Guido Raimondi, President,
 Päivi Hirvelä,
 George Nicolaou,
 Ledi Bianku,
 Nona Tsotsoria,
 Faris Vehabović, judges,
 Ineta Ziemele, ad hoc judge,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 30 June 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 70597/11) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Latvian national, Mr Mairis Meimanis (“the applicant”), on 10 November 2011. 2. The applicant was represented by Mr S. Vārpiņš, a lawyer practising in Riga. The Latvian Government (“the Government”) was represented by their Agent Mrs K. Līce. 3. The applicant alleged, in particular, that on account of the interception of his telephone conversations his Article 8 rights had been violated and that there were no effective remedies in the Latvian legal system by which to complain about such breaches. He also alleged that the proceedings before the Constitutional Court had not been public and that he had been denied the right to be heard. 4. On 7 December 2012 notice of the application was given to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1968 and lives in Riga. 6. He is currently on trial in criminal proceedings instituted on 30 December 2005 for an attempt to take a bribe, together with A.B. and A.S. At the time the applicant was the head of a division in the Economic Crime Bureau (Ekonomikas policijas birojs) in the Main Police Department in Riga (Rīgas galvenā policijas pārvalde). 7. According to the applicant, during his trial before the appellate court, he learned that an operational investigation (operatīvās uzskaites lieta) had been opened in respect of his co-defendant A.S. 8. According to the Government, on 27 December 2005 the operational investigation had been opened on the basis of information provided by a private person. On 28 December 2005 the relevant authority, the Bureau for the Prevention and Combating of Corruption (Korupcijas novēršanas un apkarošanas birojs – the “KNAB”), had informed the prosecutor’s office about this. On the same date, a Supreme Court judge had authorised the interception of A.S.’s telephone conversations and the prosecutor’s office had authorised an undercover operation (operatīvais eksperiments). On 29 December 2005 the Head of the KNAB had authorised the interception of A.B.’s telephone conversations on the basis of section 7(5) of the Law on Operational Activities, and they included conversations with the applicant. On 30 December 2005 the KNAB had informed the prosecutor’s office about the operational measures under the same provision. The Government did not adduce any evidence in this connection. A. Operational activities and the applicant’s complaints in that regard
9. On 22 January 2009 a judge of the Criminal Cases Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta), in the context of the criminal proceedings against the applicant, requested information about the operational investigation. 10. On 18 February 2009 a specialised prosecutor, having examined the material in accordance with section 35(1) of the Law on Operational Activities, replied that the operational investigation had been opened on 27 December 2005. In respect of the applicant, no interception of telephone conversations had been carried out in the context of that operational investigation. However, she noted that “his conversations were recorded if he was speaking to [a person], whose conversations were intercepted in accordance with the Law on Operational Activities”. According to the applicant, he learned about this information during the appellate court hearing on 22 October 2009. 11. On 22 October 2009 the applicant requested the prosecution authorities to review the lawfulness of the operational measures which had been carried out and asked specific questions concerning these measures. 12. On 4 November 2009 the specialised prosecutor replied, among other things, that on 28 December 2008 an undercover operation had been approved on the basis of section 15(3) of the Law on Operational Activities in the context of the operational investigation to record the manner in which the sworn attorney A.S. would proceed upon receipt of 19,500 Latvian lati (LVL), to be handed over to the officials of the economic crime police, to find out whether he would continue arranging for a bribe and to ascertain his possible accomplices. She also noted that the domestic law did not provide for independent judicial supervision of operational activities; such supervision was carried out by the Prosecutor General and specially authorised prosecutors in accordance with section 35(1) of the Law on Operational Activities. Finally, she noted that the operational investigation measures in respect of the applicant and his co-defendants had not been illegal and that there had been no breaches of the general principles governing operational activities contained in section 4 of that Law. 13. On 6 November 2009 the applicant lodged a complaint about the specialised prosecutor’s reply. 14. On 27 November 2009 a higher-ranking specialised prosecutor rejected the applicant’s complaint. She referred to section 35(1) and section 5 of the Law on Operational Activities. By reference to section 7(5) the prosecutor also explained that the authorities had learned during the interception of telephone conversations of A.S. that an offence was being planned for 30 December 2005 – the act of arranging for and taking a bribe – which would also involve officials from the State Police. In order to prevent further participation of officials in corruption-related offences, a decision was taken to intercept the telephone conversations of A.B. on the basis of section 7(5) of the Law on Operational Activities. The competence of the prosecution authorities did not include examination of whether that or other provisions were compatible with the Latvian Constitution; these issues could be determined by the Constitutional Court. 15. The applicant lodged a further complaint with the Prosecutor General, which was rejected by a final decision of 29 December 2009. With reference to sections 35(1) and 7(5) of the Law on Operational Activities, it was reiterated that no breaches of that Law had been found. B. The proceedings before the Constitutional Court
16. On 29 June 2010 the applicant lodged an individual constitutional complaint with the Constitutional Court (Satversmes tiesa). He alleged that (i) section 7(5) of the Law on Operational Activities was incompatible with Articles 89 (protection of human rights) and 96 (right to private life) of the Constitution (Satversme) and also with Articles 8 and 13 of the Convention, and (ii) the first and second sentence of section 35(1) of the Law on Operational Activities were incompatible with Article 89 and the first sentence of Article 92 (right to a fair trial) of the Constitution and also with Article 6 § 1 and Article 13 of the Convention. 17. On 16 July 2010 the Constitutional Court initiated proceedings in case no. 2010-55-0106 with regard to the compatibility of section 7(5) of the Law on Operational Activities with Article 96 of the Constitution and Article 13 of the Convention and the compatibility of the first sentence of section 35(1) of that Law with Article 92 of the Constitution alone. The Constitutional Court rejected the remainder of the applicant’s complaint. 18. On 6 September 2010 a judge dismissed the applicant’s request, among other things, to see the case materials, since it was contrary to the procedure laid down in the Law on the Constitutional Court. It was for the judge to take the necessary steps to prepare a case for adjudication (lietas sagatavošana izskatīšanai) in accordance with section 22 of the Law on the Constitutional Court. He also referred to section 22(9), section 24 and 22(2)(1) of the Law on the Constitutional Court (see paragraphs 34-35 below) to explain that the parties were entitled to see the case materials after the decision concerning adjudication had been taken and that it was for the judge to decide which institutions or officials were to be requested to submit additional information or documents. 19. On 5 November 2010 the judge dismissed the applicant’s request to see the written submissions filed by the Latvian Parliament (Saeima) in the proceedings on the grounds that such request had already been dismissed given that these submissions formed part of the case materials. 20. On 2 December 2010 the applicant requested permission to see at least the judge’s preliminary opinion (atzinums par lietas sagatavošanu izskatīšanai) before the preparation of the case was completed and before the preparatory meeting had taken place. The applicant sought the possibility of expressing his opinion on the proceedings and, in particular, on whether or not the case could be decided by means of an oral procedure, which was his preference. 21. On 17 December 2010 the President of the Constitutional Court replied to the applicant that the parties could see the case materials only after the decision concerning adjudication had been taken. That decision had been taken on 14 December 2010. Consequently, the applicant could see the case material. As regards the possibility of the proceedings being conducted orally or in accordance with a written procedure, he explained that this issue was to be determined by the Constitutional Court in accordance with section 22(8)-(10) of the Law on the Constitutional Court. This issue was first to be considered by the relevant judge, then by the President of the Constitutional Court and, subsequently, by all other judges in the preparatory meeting. The parties could express their opinion on this matter after they had seen the case materials. 22. On 21 January 2011 the applicant filed an opinion with the Constitutional Court and noted, among other things, that the case could not be decided through a written procedure and that an oral hearing should be held. He admitted that the written procedure before the Constitutional Court as such did not infringe his rights to be heard, but submitted that it had to be examined in each particular case and that the court was not allowed to reject a request in connection with the gathering of evidence without examining its necessity, significance or procedural legal grounds. 23. On 25 January 2011, in a closed preparatory meeting, the Constitutional Court examined the case materials and found that the documents contained therein were sufficient for the purposes of examining the case by means of a written procedure (sections 22(10) and 281 of the Law on the Constitutional Court). On 26 January 2011 the applicant was informed about this decision and was given 15 days to see the case materials and to give his opinion in connection with them (section 281(2) of the Law on the Constitutional Court). The applicant used this possibility. 24. On 11 May 2011 the Constitutional Court delivered its ruling in case no. 2010-55-0106 and held that the contested legal provisions complied with the Constitution and the Convention. The relevant part reads as follows:
“11. ... It follows from the case materials that, on 27 December 2005, the KNAB opened an operational investigation. Interception of the Applicant’s telephone conversations was carried out from 29 to 31 December 2005, that is, for three days under section 7(5) of the Law on Operational Activities (see Case materials, Vol. 1, pp. 85 – 86). There is no dispute that the Applicant also participated in the telephone conversations which were intercepted.
... 13. The Applicant and the Ombudsman argue that the restriction of rights established in section 7(5) of the Law on Operational Activities is unclear. It is impossible to understand the meaning of ‘to prevent’. Nor can it be understood what preconditions need to be fulfilled in order to take operational measures under the special procedure where immediate action is required. Therefore, the restriction of rights established in the above-mentioned legal provision has not been provided for by a properly adopted law (see Case materials, Vol. 1, pp. 7 – 8, and Vol. 3, pp. 46‑48).
...
13.2. The Applicant argues that the provisions of section 7(5) of the Law on Operational Activities must be applied only when necessary to prevent serious or especially serious crimes. Consequently, the operational measures contained in this provision cannot be performed for the purpose of detecting (atklāt) a criminal offence.
... The first sentence of section 7(5) of the Law on Operational Activities provides that ... operational activities may be carried out to react immediately to threats of criminal offences as referred to in this provision and [that] corresponding operational measures [may be taken] to prevent these offences. However, the fact that detection of criminal offences has not been mentioned expressis verbis in section 7(5) of the Law on Operational Activities, does not exclude the obligation to observe the purpose of operational activities. [The Constitutional Court] can agree with the arguments of Parliament and the KNAB, namely, that when carrying out activities mentioned in section 7(5) of the Law on Operational Activities, a criminal offence can be prevented and detected as well. When taking operational measures to prevent criminal offences, some [other] criminal offence may also be detected. For instance, in the case of the taking of a bribe, operational measures may prevent a criminal offence, as well as identifying the persons involved in giving such a bribe. Therefore, it can be concluded that the term ‘to prevent’ in section 7(5) of the Law on Operational Activities includes not only prevention of crime, but also detection of other criminal offences.
13.3. ...
[The Constitutional Court] does not agree with the opinion by the Ombudsman that section 7(5) of the Law on Operational Activities is unclear as it fails to establish preconditions which are necessary to allow immediate action to be taken in the form of operational measures under the special procedure. Section 7(5) of the Law on Operational Activities establishes two preconditions which allow ... operational measures. First, section 7(5) of the Law on Operational Activities enumerates specific circumstances ... Operational measures may be taken when required to prevent acts of terrorism, murder, banditry, riots, or other serious or especially serious offences. They are permissible also in circumstances of a real threat to the life, health or property of an individual. [The Constitutional Court considers that] this enumeration ... is exhaustive and sufficiently precise. Consequently, it excludes any possibility of operational measures under the special procedure in relation to the prevention of such criminal offences which are not indicated in the legal provision. Second, operational measures ... may be taken ... only when an immediate action is required. Interpreting this legal provision in conjunction with section 17(3) of the Law on Operational Activities, [the Constitutional Court] concludes that covert interception of non-public conversations is allowed only when [there is] reliable information (pamatotas ziņas) about persons’ involvement in a criminal offence, as well as a threat to important interests of the State, its security or defence. Consequently ... operational measures ... may be taken if [there is] reliable information regarding the involvement of an individual in a criminal offence. Section 7(5) of the Law on Operational Activities provides for an exceptional procedure, namely, it allows ... immediate operational measures to be taken because any delay might significantly influence their results. Taking into account the seriousness of the offences referred to in section 7(5) of the Law on Operational Activities, it is important to provide a timely and effective response to prevent all threats related to such crimes. Section 7(5) of the Law on Operational Activities establishes the preconditions for its application [with sufficient precision]; consequently, the restriction on the fundamental rights has been established by law.
... 17. The Applicant indicates that section 7(5) of the Law on Operational Activities does not provide an obligation ... to receive approval by a judge in cases where operational measures are terminated within ... 72 hours (see Case materials, Vol. 1, pp. 26 – 27).
17.1. Sections 7(2) and 7(3) of the Law on Operational Activities establish two procedures for taking operational measures, namely, under the general and special procedures. Such classification is closely related to the nature of operational measures and their impact on the fundamental rights of persons. In the cases established in section 7(5) of the Law on Operational Activities, operational measures must be taken under the special procedure as they significantly impinge on the fundamental rights of persons. The Constitutional Court considers that the grammatical wording of section 7(5) of the Law on Operational Activities [does not clearly indicate] whether it is necessary to obtain approval by the President of the Supreme Court or a specially authorised judge in cases when operational measures are terminated within ... 72 hours.
17.2. In order to determine the content of section 7(5) of the Law on Operational Activities, it must be interpreted in conjunction with other provisions of the same section regulating operational measures to be taken under the special procedure. Section 7(5) of the Law on Operational Activities contains a reference to section 7(4) setting out the operational measures to be taken under the special procedure. These measures, including monitoring of correspondence and covert interception of non-public conversations, must be taken with the approval of the President of the Supreme Court or a specially authorised judge. Although section 7(5) of the Law on Operational Activities provides for exceptional circumstances where ... immediate action may be taken, it also establishes the obligation ... to obtain the approval of the President of the Supreme Court or a specially authorised judge for operational measures under section 7(4). Already when the draft of the Law on Operational Activities was being drawn up ... the need to receive a judge’s approval was emphasised in cases where operational measures would be taken under the special procedure (see Case materials, Vol. 1, pp. 171 and 173). The third sentence of section 7(5) of the Law on Operational Activities indicated that the operational measures had to be discontinued where no approval by a judge was obtained. According to the KNAB, this indication confirms that a judge’s approval must be sought only in cases where operational measures have not been terminated within ... 72 hours (see Case materials, Vol. 3, pp. 45). However, the Ministry of Justice and the Ombudsman indicate that such an interpretation ... would not comply with the essence of the Constitution (see Case materials, Vol. 3, pp. 48 and 54 – 55). Section 7(5) of the Law on Operational Activities contains no reference to the fact that no approval by the President of the Supreme Court or a specially authorised judge is necessary for operational measures to be taken under section 7(4) in the event that it is planned to terminate them within ... 72 hours. Consequently, [the Constitutional Court] cannot agree with the opinion by the KNAB that a judge’s approval does not have to be obtained if operational measures are terminated within ... 72 hours.
...
17.3. ... Consequently, section 7(5) of the Law on Operational Activities provides that a prosecutor must always be informed of the operational measures taken; this provision also obliges ... [the seeking of] approval by the President of the Supreme Court or a specially authorised judge. The restriction established in section 7(5) of the Law on Operational Activities must be regarded as the most lenient measure for fulfilling the legitimate aim because monitoring by a prosecutor and subsequent judicial scrutiny of the lawfulness of operational measures ensures effective protection of the rights of persons.
18. ... It is not possible to agree with the Applicant’s statement to the effect that the infringement of his right is greater than the benefit gained by society. By means of a lawful restriction of a person’s right to respect for his or her private life, the State helps to combat crime and permits ... immediate reaction to threats of criminal offences that are particularly dangerous for society, serving to prevent them and identifying the persons involved. When intercepting non-public conversations in the cases established in section 7(5) of the Law on Operational Activities, the protection of public safety is ensured. Consequently, operational measures taken to prevent criminal offences referred to in section 7(5) of the Law on Operational Activities must be regarded as proportionate and compliant with Article 96 of the Constitution only if approval by the President of the Supreme Court or a specially authorised judge has been obtained irrespective of the time when the operational measures are terminated. 19. The Applicant indicates that the [prosecutor’s office] cannot be regarded as an effective remedy in respect of his rights within the meaning of Articles 8 and 13 of the Convention (see Case materials, Vol. 1, pp. 17 – 18). The Constitutional Court has already established in its case-law that [an application to] the prosecutor’s office in Latvia may be regarded as an effective and available remedy, because the status and the role of the prosecutor in the supervision of law secures independent and impartial review of cases in compliance with Article 13 of the Convention (see Judgment of 11 October 2004 by the Constitutional Court in the case No. 2004-06-01. Para 19). In the present case it is necessary to examine whether section 7(5) of the Law on Operational Activities provides a person with protection compliant with Article 13 of the Convention in cases where the right to the inviolability of private life and correspondence guaranteed in the Convention is infringed. The Constitutional Court concludes that section 7(5) of the Law on Operational Activities establishes circumstances ... where operational measures may be taken immediately, as well as the procedure in accordance with which this has to be notified to a prosecutor and approval by a judge is to be obtained. However, this provision is not related to the right to an effective remedy under Article 13 of the Convention. Consequently, the compliance of section 7(5) of the Law on Operational Activities with Article 13 of the Convention must be assessed in conjunction with the first sentence of section 35(1) of that Law, the latter establishing a mechanism for monitoring operational measures and being contested by the Applicant as to its compliance with Article 92 of the Constitution. 20. The Applicant indicates that the first sentence of section 35(1) of the Law on Operational Activities fails to comply with Article 92 of the Constitution because it has no legitimate aim and it is not necessary in a democratic society. The provision fails to establish a procedure according to which the supervision and monitoring of performance of operational measures would be carried out. In the monitoring of operational measures, the first sentence of section 35(1) of the Law on Operational Activities confers on the prosecutor’s office a broad margin of appreciation (see Case materials, Vol. 1, pp. 20 – 21).
21.1. ... The Constitutional Court has already concluded in paragraph 17 above that [there is] an obligation to request, in any event, the approval of the President of the Supreme Court or a specially authorised judge in relation to operational measures. Consequently, the legislature has established such a regulatory framework for operational measures that requires not only monitoring by a prosecutor but also judicial supervision or at least subsequent judicial scrutiny of the lawfulness of the measures taken and their compliance with the requirements of the law.
20.2. ... The Constitutional Court has already indicated in its case-law that the prosecutor’s office, as a judicial institution, has a twofold nature. On the one hand it is a single, centralised three-level institutional system, under the management of the Prosecutor General, but – on the other – prosecutorial functions are carried out independently and solely by officials of the prosecutor’s office, that is, the individual prosecutors (see Judgment of 20 December 2006 by the Constitutional Court in the case No. 2006-12-01, Para 12.2).
... As to the taking of operational measures referred to in section 7(4) of the Law on Operational Activities, in cases established in section 7(5), ... a prosecutor, that is, the Prosecutor General or specialised prosecutors, must be notified within ... 24 hours (see Kavalieris A. Operatīvās darbības likuma komentāri. Rīga: Raka, 2002, pp. 26). Consequently, the Prosecutor General or specialised prosecutors also supervise the lawfulness of operational measures. Pursuant to section 22(2) of the Law on Operational Activities, operational proceedings (operatīvā izstrāde) are opened by a decision approved by a head or deputy head of the operational activities authority and a prosecutor is informed about this. Consequently, operational measures established in section 7(5) of the Law on Operational Activities ... must be notified to the Prosecutor General or a specialised prosecutor. The Constitutional Court indicates that in the event of receipt of such notice, the public prosecutor must monitor the compliance of the investigative operational measures with the requirements of the law, thus ensuring the observance of the rights of the person concerned.
20.3. The Applicant indicates that the possibility of securing protection for one’s rights is limited in cases where one’s telephone calls are intercepted (see Case materials, Vol. 1, pp. 10, 13, 18 and 22).
... It follows from the afore-mentioned that the Prosecutor General and specialised prosecutors review operational activities and, based on the results of such review, provide an opinion on the lawfulness of operational activities ... Review is necessary for the Prosecutor General and specialised prosecutors to ensure that operational measures have been lawful. However, the effective regulatory framework also establishes judicial supervision, including subsequent scrutiny. Consequently, [the Constitutional Court does not] agree with the opinion that the effective regulatory framework fails to provide independent subsequent scrutiny in respect of operational measures. Pursuant to section 29(3) of the Law on Operational Activities, if in the course of operational activities the rights and interests of persons have been unlawfully infringed and damage has been caused, the obligation of the relevant officials (prosecutor or court) shall be to restore such rights and to compensate for or avert the inflicted pecuniary and non-pecuniary damage in accordance with the law. Consequently, it can be concluded that the Law on Operational Activities establishes the responsibility of the officials of [the relevant body] in the case of any infringement of fundamental rights.
... Consequently, the investigating authority and the court ensure the review of the admissibility of information obtained by means of operational measures. However, the Prosecutor General and specialised prosecutors, by monitoring the conformity of operational activities with the law, as well as the court in carrying out subsequent scrutiny, ensure effective protection of a person’s rights.
...”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution (Satversme)
25. The relevant Articles of the Constitution provide:
Article 85
“In Latvia, there shall be a Constitutional Court [Satversmes tiesa], which, within the limits of its jurisdiction as provided for by law, shall review cases concerning the compliance of laws with the Constitution, as well as other matters regarding which jurisdiction is conferred upon it by law. The Constitutional Court shall have the right to declare laws or other enactments or parts thereof invalid ...”
Article 89
“The State shall recognise and protect fundamental human rights in accordance with this Constitution, laws and international agreements binding upon Latvia.”
Article 92
“Everyone has the right to defend his or her rights and lawful interests in a fair court. Everyone shall be presumed innocent until his or her guilt has been established in accordance with the law. Everyone whose rights are violated without justification has the right to commensurate compensation. Everyone has the right to the assistance of counsel.”
Article 96
“Everyone has the right to inviolability of his or her private life, home and correspondence.”
Article 116
“The rights of persons set out in Articles 96 ... of the Constitution may be subject to restrictions in circumstances provided for by law in order to protect the rights of others, the democratic structure of the State, public safety, welfare and morals ...”
B. The Law on Operational Activities (as in force at the material time, with amendments effective until 31 December 2009)
26. The term “operational activities” covers all operations, covert or otherwise, of specially authorised State institutions that are aimed at protecting individuals, the independence and sovereignty of the State, the constitutional system, the country’s economic and scientific potential, and classified information, from external or internal threats (section 1). Operational activities are aimed, inter alia, at preventing and detecting criminal offences, tracing the perpetrators of criminal offences, and finding sources of evidence (section 2). 27. As to when the Law on Operational Activities is to be applied, section 4(4) contains an explanation to the effect that operational activities are to be undertaken only when the goals and tasks set out in sections 1 and 2 could not be achieved or fulfilled in any other way, or if the said achievement of goals and fulfilment of tasks would otherwise be significantly hampered. 28. Section 5 provides:
Article 5 - Protection of Rights and Freedoms of Individuals
“If an individual believes that a body carrying out operational activities (operatīvās darbības subjekts) has infringed his lawful rights and freedoms, he or she is entitled to lodge a complaint with the prosecutor, who shall conduct an examination and issue a conclusion (atzinums) concerning the lawfulness of the contested actions of the official of the body carrying out operational activities (operatīvās darbības subjekta amatpersona), or the individual may bring an action before the court.”
29. Section 7(5) provides:
“When an immediate action is required to prevent acts of terrorism, murder, banditry, rioting or any other serious or especially serious crimes, as well as in the circumstances of a real threat to the life, health or property of an individual, the operational measures provided in paragraph 4 of the present section [monitoring of correspondence, obtaining information from technical devices, covert interception of non-public conversations (including telephone conversations and communication using electronic and other means) and entering premises] may be taken without approval (akcepts) by a judge. The prosecutor shall be informed within 24 hours and the judge’s approval shall be obtained within 72 hours. Otherwise, the operational measures shall be discontinued.”
30. Section 35 provides:
“(1) The Prosecutor General and prosecutors specially authorised by him shall be responsible for monitoring (uzraudzība) the conformity of operational activities with the law. For the purposes of monitoring they shall be entitled to consult such documents, materials and information, at any stage of the operational activities, as are available to the investigating body (operatīvās darbības iestāde). Secret information and its sources shall be revealed only to the Prosecutor General, or to the prosecutors specially authorised by him with the permission of the head of the investigating body. (2) In order to take a decision with respect to operational measures which require approval by a judge, the judge shall be entitled to consult those documents, materials and information available to the investigating body on which the necessity for the operational measure, according to the special method, is based. Secret information and its sources shall be revealed to the judge only with the permission of the head of the investigating body.”
C. The Law on the Constitutional Court
31. Section 16 of the Law on the Constitutional Court provides that that court is competent to examine only the following matters:
“(i) compliance of laws with the Constitution;
(ii) compliance with the Constitution of international agreements signed or entered into by Latvia (even before [parliament] has confirmed the agreement);
(iii) compliance of other legal instruments or parts thereof with the legal norms (instruments) of superior legal force;
(iv) compliance of other instruments (with the exception of administrative acts) by [parliament], the Cabinet of Ministers, the President, the Speaker of [parliament] and Prime Minister with the law;
(v) compliance of Regulations, by which a Minister, authorised by the Cabinet of Ministers, has suspended binding regulations issued by a Local Government Council, with the law;
(vi) compliance of the national legal norms of Latvia with the international agreements entered into by Latvia, which are not incompatible with the Constitution.”
32. Section 17 of the Law on the Constitutional Court provides that any person who considers that his or her fundamental rights have been breached has the right to submit an application to the Constitutional Court. 33. Section 192 of the Law on the Constitutional Court provides:
“(1) Any person who considers that a legal provision, which is not in compliance with a provision having superior legal force, has infringed his or her fundamental rights under the Constitution may lodge a constitutional complaint (an application) with the Constitutional Court. (2) A constitutional complaint (an application) may be lodged only after exhaustion of all the possibilities for securing protection of such rights through ordinary legal remedies (appeal to a higher authority, appeal or application to a court of general jurisdiction, etc.) or where no such remedies exist. (3) Where examination of a constitutional complaint (an application) is in the public interest or where legal protection of the rights in question via ordinary remedies does not enable the appellant to avoid substantial damage, the Constitutional Court may decide to examine the application even before all other domestic remedies have been exhausted. (4) A constitutional complaint (an application) may be lodged within six months of the date on which the decision of the highest instance becomes final. (5) The submission of a constitutional complaint (an application) shall not suspend the execution of a judicial decision, except in cases where the Constitutional Court decides otherwise. (6) In addition to its substance, as required by section 18(1) of the present Law, a constitutional complaint (an application) must contain submissions concerning:
 (i) the violation of the appellant’s fundamental human rights as provided in the Constitution, and;
 (ii) the exhaustion of all ordinary remedies or the fact that no such remedies exist. (7) The following information must be appended to a constitutional complaint (an application):
 (i) the explanations and documentation required to establish the facts of the case;
 (ii) documents certifying that, where they exist, all ordinary remedies have been exhausted.”
34. Section 22(1) provides that the President of the Constitutional Court assigns a case to one of the judges for preparation. It is for the judge to decide which institutions or officials are to be requested to submit additional information or documents and to determine any third parties (pieaicinātās persons) who will be requested to submit their opinions (section 22(2)-(3)). Any person may be recognised by a judge as a third party, if that person’s opinion would facilitate comprehensive and objective adjudication (section 22(3)). A judge completes his or her preparation of the case by issuing a preliminary opinion (atzinums par lietas sagatavošanu izskatīšanai), and if he or she considers that the proceedings could be conducted in accordance with a written procedure, he or she includes a proposal to that effect in the preliminary opinion (section 22(8)). The preparation of the case is completed when the President of the Constitutional Court issues a decision concerning adjudication (lēmums par lietas nodošanu izskatīšanai), determining the composition of the bench and scheduling the time and place for a preparatory meeting (rīcības sēde) (section 22(9)). One of the matters to be decided in the preparatory meeting is whether or not to conduct proceedings in accordance with a written procedure (section 22(10)(1)). Lastly, if the written procedure is to be followed, the parties are to be informed about this decision (section 22(13)). 35. Section 24 of the Law on the Constitutional Court provides:
“After a decision concerning adjudication (lēmums par lietas nodošanu izskatīšanai) has been taken, the parties to the case – the applicant and the institution or authority which has issued the impugned provision – may acquaint themselves with the case materials.”
36. Section 281 (with amendments effective until 30 June 2011) of the Law on the Constitutional Court provides:
Section 281 - Written Procedure
“(1) In circumstances where the case materials are sufficient for adjudication of the case by a written procedure, a hearing with the participation of the parties need not be held. Adjudication of a case by a written procedure shall be determined in accordance with section 22(10) of the present Law. (2) Within fifteen days of receipt of a notification regarding a matter being adjudicated by a written procedure, the parties shall have the right to acquaint themselves with the case materials and express their opinion regarding them in writing. (3) The case shall be adjudicated by the written procedure and the judgment shall be made in the deliberation room.”
37. Section 32 of the Law on the Constitutional Court provides:
“(1)  The judgment of the Constitutional Court shall be final. It shall take legal effect at the time of delivery. (2)  The judgment of the Constitutional Court shall be binding on all State and municipal institutions and authorities, including the courts, and also on natural persons and legal entities. (3)  Any legal provision or act which the Constitutional Court has found incompatible with the legal provision having superior legal force shall be considered invalid from the date of publication of the Constitutional Court’s judgment, unless the Constitutional Court rules otherwise. (4)  If the Constitutional Court has declared any international agreement signed or entered into by Latvia as incompatible with the Constitution, the Cabinet of Ministers shall ensure that amendments to the agreement are made without delay, or otherwise decide upon the denunciation of the agreement, the suspension of its operation or the revocation of accession.”
38. Section 32(2) of the Law on the Constitutional Court was amended to provide that the interpretation of a legal provision provided by the Constitutional Court would also be binding. The amendment was effective from 1 January 2010. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
39. The applicant complained that the proceedings before the Constitutional Court had not been public and that he had been denied a right to be heard as provided for in Article 6 § 1 of the Convention, which in its relevant part reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by [a] ... tribunal ...”
A. Applicability of Article 6 § 1
40. The Government contested the applicability of Article 6 § 1 to the proceedings in question, arguing that there was no “criminal charge”, “civil right” or “dispute” in the present case. 41. The applicant did not provide any comment in this connection. 42. The Court reiterates that proceedings come within the scope of Article 6 § 1, even if they are conducted before a Constitutional Court, where their outcome is decisive for civil rights and obligations (see Süßmann v. Germany, 16 September 1996, § 41, Reports of Judgments and Decisions 1996‑IV). 43. More generally, for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute (“contestation” in the French text) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see Boulois v. Luxembourg [GC], no. 37575/04, § 90, ECHR 2012)
44. The Court nevertheless considers that it is unnecessary to reach a conclusion as to whether Article 6 § 1 applied to the constitutional proceedings in the present case for the reasons outlined below. B. Compliance with Article 6 § 1
1. Parties’ submissions
45. In his application to the Court the applicant submitted that he had not been given the possibility of “personally explaining” his case, which involved questions of both fact and law, before the Constitutional Court. He considered that there had been no legal grounds for refusing to hold a public hearing in his case. Article 6, as a whole, provided for the right to be heard. In his case, the written procedure before the Constitutional Court had significantly interfered with his fair trial rights. He had not been able to see the case materials before the decision concerning adjudication was taken, but he admitted that afterwards he had been entitled to see them and express his opinion prior to the preparatory hearing, which took place on 25 January 2011. At the preliminary stage of the proceedings, he had not been able to find out which institutions or officials had been requested to submit information, documents or opinions. The applicant believed that such legal regulation allowed unfettered discretion for the relevant judge to gather evidence according to his or her own subjective views. He could not fully participate in the gathering of evidence, that is, by choosing third parties to the case and asking them questions. He admitted that the written procedure before the Constitutional Court as such did not infringe his right to be heard, but submitted that this had to be examined in each particular case and that the court was not allowed to reject a request in connection with the gathering of evidence without examining its necessity, significance or procedural legal grounds. 46. The Government pointed out that, according to the Court’s case-law, the obligation to hold a (public) hearing was not absolute. They argued that the absence of a hearing before the Constitutional Court in proceedings following an individual constitutional complaint was justified by that court’s special role and the specific nature of the proceedings before it, which involved exclusively legal issues and not the establishment of facts (they referred to Juričić v. Croatia, no. 58222/09, § 90, 26 July 2011). The Government submitted that in proceedings involving only questions of law, as opposed to questions of fact, a hearing was not required, provided that one had been held before a lower court (they referred to Hermi v. Italy [GC], no. 18114/02, §§ 60-61, ECHR 2006‑XII). As regards the constitutional courts in particular, a hearing was not normally required as their competence was limited to an examination of constitutional issues and entailed an assessment of points of law and not facts (they referred to Zippel v. Germany (dec.), no. 30470/96, 23 October 1997; Weh and Weh v. Austria (dec.), no. no. 38544/97, 4 July 2002; and Prischl v. Austria, no. 2881/04, §§ 20-22, 26 April 2007). 47. There was only one exception where a hearing would be required before a constitutional court – where the latter was the only body which could determine the dispute between an applicant and the national authorities (Kugler v. Austria, no. 65631/01, § 50, 14 October 2010). The Government argued that this exception was not applicable in the present case. The lawfulness of the interception had already been examined by the prosecutor’s office, which in their submission was an institution exercising a judicial function, and the admissibility of evidence obtained as a result would be examined in the criminal proceedings, where hearings were held at first and second instance. The Constitutional Court could address only the specific question of the compliance of the impugned legal provisions with the Constitution. Lastly, there was no information as to why his complaint could not be decided on the basis of the case file alone (they referred to section 281 of the Law on the Constitutional Court). 2. The Court’s assessment
48. The Court recognises not only the special role and status of constitutional courts, but also the special nature of constitutional appeals, which, in those States that have made provision for a right of individual petition, afford additional legal protection to citizens at national level in respect of their fundamental rights guaranteed in the Constitution (see Süßmann, cited above, § 37, and Hesse-Anger and Anger v. Germany (dec.), no. 45835/99, ECHR 2001‑VI (extracts)). Proceedings before a Constitutional Court have their own characteristics, which take account of the specific nature of the legal rules to be applied and the implications of the constitutional decision for the legal system in force. They are also intended to enable a single body to adjudicate on a large number of cases relating to very different subjects (see Ruiz-Mateos v. Spain, 23 June 1993, § 63, Series A no. 262). The constitutional proceedings may be limited to the examination of questions of constitutionality, which do not necessarily involve a direct and full determination of civil rights (see Malhous v. the Czech Republic [GC], no. 33071/96, § 62, 12 July 2001). 49. The Court observes that the Constitutional Court in Latvia examines, inter alia, individual complaints challenging the constitutionality of a legal provision or its compliance with a provision that has superior legal force (see, for a recent authority, Larionovs and Tess v. Latvia (dec.), nos. 45520/04 and 19363/05, §§ 141-142, 25 November 2014). While the public character of court hearings constitutes a fundamental principle, Article 6 § 1 of the Convention does not guarantee an absolute right to a public hearing, irrespective of the nature of the issues to be determined (see Hesse-Anger and Anger, cited above). A hearing may not be necessary, for example, when it raises no questions of fact or law which cannot be adequately resolved on the basis of the case file and the parties’ written observations (see, among many other authorities, Keskinen and Veljekset Keskinen Oy v. Finland, no. 34721/09, § 33, 5 June 2012). 50. The Court notes that the applicant himself admitted that the written procedure before the Constitutional Court as such did not infringe his right to be heard. It appears from his submissions before the Court that he merely wished to be able to express his opinion at an earlier stage of the proceedings than was provided for by law. The Court notes that the judge replied to the applicant’s request explaining the relevant procedure and stages in the proceedings before the Constitutional Court, with reference to the relevant domestic law provisions. In particular, the judge clarified that the applicant could see the case material at a later stage, that is, after the decision concerning adjudication had been taken (see paragraph 18 above). Subsequently, the applicant was able to submit his comments in connection with the case material, including the written submissions filed by Parliament and by all third parties (contrast with Ruiz-Mateos, cited above, §§ 65-68). 51. As to the applicant’s allegation that the relevant judge could gather evidence, the Court notes that in the constitutional proceedings under Latvian law the judge to whom the case has been assigned gathers the necessary evidence and information in order to prepare the case for adjudication (see paragraph 34 above). In the present case, the applicant admitted that he could, and indeed did, see the case material and had the opportunity to express his views, including on the possibility of holding an oral hearing in the case before the preparatory meeting (see paragraphs 21-22 and 45 above). Moreover, the applicant was also afforded the possibility of providing comment on the case material after the preparatory meeting had taken place (see paragraph 23 above and contrast with Juričić, cited above, §§ 75-78). 52. The Court will now examine the applicant’s argument concerning the lack of a public hearing before the Constitutional Court. In the present case the Constitutional Court was the only judicial body competent to deal with the applicant’s complaint (see, mutatis mutandis, Hesse-Anger and Anger, cited above). It is true that, where proceedings are conducted at only one level of jurisdiction, the right to a “public hearing” within the meaning of Article 6 § 1 of the Convention may entail an entitlement to an “oral hearing” (see Fredin v. Sweden (no. 2), 23 February 1994, § 21, Series A no. 283‑A). The Court notes, however, that the review undertaken in the present case related to constitutionality of legal provisions and not to factual issues, as argued by the applicant. 53. In the present case the Constitutional Court decided that the case material was sufficient for the case to be examined using a written procedure (see paragraph 23 above) in accordance with the domestic law. The applicant did not complain that this decision was arbitrary, he merely wished to “personally explain” his case before the Constitutional Court without providing more substance to this argument. The only argument the applicant advanced in this connection was that there had been no legal grounds for such decision to be taken. The Government relied on section 281 of the Law on the Constitutional Court and the applicant did not dispute this. 54. The foregoing considerations are sufficient to enable the Court to conclude that it was not necessary to hold a public hearing before the Constitutional Court in the present case. Even assuming that Article 6 § 1 applies to the constitutional proceedings, it follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
55. The applicant complained that on account of the interception of his telephone conversations his right to respect for his private life and for his correspondence had been violated. The relevant part of Article 8 of the Convention provides as follows:
“1. Everyone has the right to respect for his private ...life ... and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
56. The Government contested that argument. A. Admissibility
57. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible. B. Merits
1. Parties’ submissions
58. The applicant maintained that there had been an interference with his right to respect for his private life and his correspondence. He did not deny that there had been a statutory basis for the interference under section 7(5) of the Law on Operational Activities. He complained about the quality of the law and argued that it had left too much discretion for domestic authorities to choose how to apply it and that arbitrariness in its application could not be excluded. Under section 7(5) the prosecutor could merely approve the interference without examining the facts of each case. In effect, that provision allowed operational measures to be taken without prior judicial authorisation, only requiring that the prosecutor’s office be informed within 24 hours. In the applicant’s case, the authorisation was not sought from the judge within 72 hours, in breach of domestic law. As to the question of a legitimate aim, the applicant pointed out that the criminal proceedings had been instituted only on 30 December 2005; thus, the telephone interception could not have been carried out in connection with those proceedings. In his submission, the telephone interception under the Law on Operational Activities had been carried out in order to circumvent the regular procedure (under the Criminal Procedure Law) of obtaining prior authorisation by a judge. 59. The Government did not deny that there had been an interference with the applicant’s right to respect for his private life and correspondence. They believed, however, that the interference at issue was prescribed by law, pursued a legitimate aim and was necessary in a democratic society. The interference had resulted from the interception of A.B.’s telephone conversations, which had been authorised under section 7(5) of the Law on Operational Activities. In the Government’s view this was sufficient to conclude that the criterion of lawfulness was met in the present case. Moreover, the lawfulness of the interception had subsequently been confirmed on several occasions by the prosecutor’s office in response to the applicant’s complaints (paragraphs 11-15 above). They claimed that it had also been verified by the relevant judge of the Criminal Cases Chamber of the Supreme Court (in the context of the criminal proceedings). Lastly, they referred to the findings of the Constitutional Court confirming that the said provision had been sufficiently clear and precise as to exclude arbitrariness. Namely, the said provision contained an exhaustive list of offences and the necessary precondition for its application was a situation requiring immediate action. Furthermore, the Government submitted that the interference at issue had pursued the legitimate aim of preventing crime, given that it had been carried out in the framework of criminal proceedings in connection with aggravated bribery. In response to the applicant’s argument, they further reiterated that owing to the rapid development of events from 27 to 30 December 2005 no measures other than the operational interception of telecommunications would have been efficient for gathering credible information about the details of and accomplices involved in the bribery scheme. 2. The Court’s assessment
60. At the outset the Court notes that it is common ground between the parties that the interception of the applicant’s telephone conversations constituted an interference with his right to respect for his private life and correspondence and that this interference was attributable to the State. The Court sees no reason to hold otherwise (see, for example, Weber and Saravia v. Germany (dec.), no. 54934/00, § 77, ECHR 2006‑XI and the cases cited therein). 61. It is therefore necessary to examine whether this interference was justified under the terms of paragraph 2 of that Article: whether it was “in accordance with the law” and “necessary in a democratic society” for one of the purposes enumerated in that paragraph. 62. The Court observes that the expression “in accordance with the law” not only requires compliance with domestic law but also relates to the quality of that law, requiring it to be compatible with the rule of law. In the context of covert surveillance by public authorities, domestic law must provide protection against arbitrary interference with an individual’s right under Article 8. Moreover, the law must be sufficiently clear in its terms to give individuals an adequate indication of the circumstances and conditions in which public authorities are entitled to resort to such covert measures (see Khan v. the United Kingdom, no. 35394/97, § 26, ECHR 2000‑V). 63. The Court observes that the applicant’s arguments relating to the text, scope and clarity of section 7(5) of the Law on Operational Activities were examined in detail by the Latvian Constitutional Court; it is not the Court’s task to re-examine those arguments. The Court observes that under that provision “the prosecutor [must] be informed within 24 hours and the judge’s approval [must] be obtained within 72 hours; otherwise, the operational measures [must] be discontinued”. The Constitutional Court examined this provision in connection with other relevant domestic-law provisions (see the Constitutional Court’s analysis in paragraphs 13 and 17 of its judgment, paragraph 24 above) and concluded that a prosecutor must always be informed and that approval by the President of the Supreme Court or a specially authorised judge must always be sought, also in the circumstances where the operational measures had been terminated in less than 72 hours (see paragraph 17.3 of its judgment, paragraph 24 above). 64. In the present case, the applicant submitted and the Government did not deny that the relevant authority – the KNAB – never sought an ex post facto approval by the President of the Supreme Court or a specially authorised judge. Indeed, as can be seen from the submissions by the KNAB before the Constitutional Court, it had been the authority’s opinion that ex post facto approval was not required in all cases – namely, that it was not required if the operational measures were terminated in less than 72 hours. This argument was expressly dismissed by the Constitutional Court (see paragraph 17.2 in fine of its judgment, paragraph 24 above). The Court finds that, in accordance with the relevant Latvian law, as interpreted by the Constitutional Court, the ex post facto approval by the President of the Supreme Court, or a specially authorised judge, of the operational measures was required in the circumstances of the present case, notwithstanding that the interception of the telephone conversations was terminated in less than 72 hours. This conclusion is not altered by the fact that the lawfulness of these measures was confirmed by various prosecutors. Their conclusions were limited to section 35(1) of the Law on Operational Activities (see paragraphs 12 and 15 above) and, in any event, their review was carried out before the Constitutional Court adopted its judgment in the present case providing for an authoritative interpretation of section 7(5) of that Law. The Court would add that the domestic authorities are bound by the interpretation given by the Constitutional Court in accordance with section 32 of the Law on the Constitutional Court (see paragraphs 37 and 38 above). 65. Having found that the ex post facto approval by the President of the Supreme Court or a specially authorised judge, as required by section 7(5) of the Law on Operational Activities following the interpretation of the Constitutional Court, was never sought in the applicant’s case, the Court does not consider it necessary to examine whether other conditions set out in the domestic law for the application of the operational measures were met in the present case. 66. The foregoing considerations are sufficient for the Court to conclude that the interception of the applicant’s telephone conversations was not “in accordance with the law” within the meaning of Article 8 § 2 of the Convention.

Article of the Convention at issue: Article 13
Outcome: no_violation