The unjustified decision to secretly surveil telephone conversations violated the right to respect for privacy and correspondence

JUDGMENT 

Liblik and others v. Estonia 28.05.2019 (no. 173/15, 181/15, 374/15, 383/15, 386/15 and 388/15)

see here  

SUMMARY 

Surveillance of phone conversations. The applicants were accused of high-level corruption. The Inter-Criminal Tribunal had been instructed by the Homeland Security Service to monitor the telephone conversations of the three applicants. Their interference with privacy and correspondence had not complied with domestic law, requiring that secret surveillance had to be duly justified. The ECtHR held that secret telephone tracking was unlawful and violated the right to respect for privacy and correspondence.

PROVISION 

Article 8

PRINCIPLA FACTS 

The applicants in this case are four Estonian nationals, Tullio Liblik, Kalev Kangur, Toomas Annus, and
Villu Reiljan, who were born in 1964, 1968, 1960, and 1953 respectively and live in Kuressaare
(Mr Liblik), Tallinn (Mr Kangur and Mr Annus), and Palamuse county (Mr Reiljan) (all in Estonia), and
two public liability companies, E.L.L. Kinnisvara AS and AS Järvevana incorporated under Estonian
law and based in Tallinn.

Between August 2005 and October 2006 the Internal Security Service (Kaitsepolitsei) carried out
surveillance on the first, second and third applicants. The third applicant was also acting as a
member of the supervisory board of the two applicant companies. The operation led to
communications between the fourth applicant and the people under surveillance being intercepted
and listened to. The criminal charges concerned suspicions of high-level corruption related to an
exchange of plots of land in conservation areas for plots in areas where development was permitted.
In September 2005, during the pre-trial proceedings, the second applicant discovered a surveillance
device in his office. Searches of the offices of the first and third applicant and of the second
applicant company took place in October 2006, and a further one was carried out in the premises of
the first applicant company in September 2007. In October 2007 the fourth applicant was
questioned as a suspect. Altogether, the pre-trial proceedings lasted three and a half years.
Harju County Court heard the case from May 2009 onwards, summoning many witnesses.
Occasionally, hearings had to be rescheduled owing to illness or other personal circumstances affecting either the accused or their representatives. In June 2012 the court acquitted the applicants.

It found that the surveillance activities had been unlawful and that all the evidence that had been
collected was inadmissible. The proceedings lasted three years and three months.

The Prosecutor General appealed and the Court of Appeal convicted the applicants in June 2013. It
found that the surveillance activities had been lawful and the evidence thereby obtained admissible.
All applicants lodged appeals on points of law with the Supreme Court, but it upheld the convictions
in June 2014. It held that the trial, although close to being excessively lengthy, had still been
concluded within a reasonable time. It further found that the regulation of secret surveillance was
constitutional and that its conditions had been fulfilled.

THE DECISION OF THE COURT 

Article 6 § 1

The Court accepted that the criminal proceedings had lasted for approximately six to eight years
with respect to different applicants and had thus been lengthy. At the same time, the Supreme Court
had expressly relied on the criteria developed by the Court and had been very thorough in assessing
whether the proceedings had exceeded the “reasonable time” limitation.

The case had been of great complexity – not only had it involved several accused, but it had
also concerned the “hidden offences” of offering and accepting gratuities, characterised by
a high level of conspiracy and complex patterns of conduct between various people. It was
thus understandable that the investigation, analysis and presentation of evidence and the
ensuing court proceedings had been time-consuming.

Moreover, the Court could not discern anything to suggest that the authorities had acted
inappropriately or had otherwise failed to carry out their duties with due diligence from the time the
applicants had become involved. The Court took into account that many of the relevant procedural
decisions (e.g. scheduling a trial of such great scope) did not depend only on the courts; there also
had to be due regard for the applicants’ defence rights and their representatives’ availability.

The Court also saw no reason to contradict the domestic findings that the applicants could
not be reproached for inappropriately prolonging the proceedings.

Even if it was mindful that such long proceedings had undoubtedly been arduous for the applicants,
it did not consider that their position in politics, the civil service or as well-known businessmen
would by itself have warranted a ruling that their case had merited priority treatment.

Making an overall assessment of the length of the proceedings, the Court concluded that they had
not gone beyond what could be considered as reasonable in the particular circumstances of the
case. The Court thus found no violation of Article 6 § 1.

Article 8

The Court considered that the secret surveillance measures amounted to an interference with the
applicants’ right to respect for their “private life” and “correspondence”, guaranteed under Article 8.
Despite the requirement in Estonian law that a surveillance authorisation order had to contain
reasons, the decisions issued by the preliminary investigation judges had included only superficial
statements, while the prosecutors’ authorisation orders had not contained any reasoning at all.

The Court therefore considered that the case bore a strong resemblance to the circumstances of
Dragojević v. Croatia. There, the domestic courts had accepted the practice of compensating for
initial insufficient reasoning in surveillance authorisation orders by providing retroactive justification.
The Court noted that the effectiveness of the safeguard of prior scrutiny and the obligation to
provide reasons might not be the same where that obligation was replaced with the possibility to
provide reasons later, at the trial stage, when the courts inevitably had more information about how
the alleged offences had been committed. It was not merely the lapse of time, but the different
procedural context in which such reasons would be provided which called for such caution.
Consequently, the Court found that, as the interference with the applicants’ private life and
correspondence had not complied with the requirement under domestic law that measures
authorising secret surveillance be duly reasoned, that interference had not been “in accordance with
the law”. There had accordingly been a violation of Article 8.

Just satisfaction (Article 41)

The Court held that Estonia was to pay 2,000 euros (EUR) to the second and third applicants and to
the first and second applicant companies in respect of non-pecuniary damage, and EUR 1,500 to the
second applicant and the same amount to the third applicant and the applicant companies jointly in
respect of costs and expenses(echrcaselaw.com).


ECHRCaseLaw

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