Published: 28 May 2019 | By Ben Lloyd
Liblik & others v Estonia
Case No.: 173/15 and 5 others
Judgment date: 28 May 2019
The applications were brought by four individuals and two companies (on whose boards the third applicant sat). The fourth applicant was a member of the Estonian Parliament at the time of the criminal proceedings.
Between August 2005 and October 2006, the Internal Security Service carried out secret surveillance of the applicants based on authorisation decisions of the prosecutor or preliminary investigation judge. Domestic law required both types of authorisations to contain reasons that there was a reasonable suspicion that an offence had been committed and that secret surveillance was a measure of last resort. The judges’ decisions provided general reasons for the necessity of the surveillance. No reasons were provided in the prosecutors’ decisions.
The criminal proceedings brought by the Estonian authorities related to suspicions of corruption involving exchanges of plots of land in conservation areas for plots in areas where development was permitted. The first instance court acquitted the applicants, holding that the surveillance evidence was inadmissible as it had been obtained unlawfully. This decision was overturned on appeal, the Appeal Court and Supreme Court finding the surveillance evidence admissible and the applicants guilty.
The Court found no violation of Article 6(1) (length of criminal proceedings). The criminal case under review was “of considerable complexity“, involving several accused, multiple witnesses and the “hidden offences” of offering and accepting gratuities, which made evidence-gathering challenging. There were no periods of inactivity or delay, and no party had inappropriately prolonged the proceedings. Overall the proceedings (between six years and eight months, and eight years and nine months) did not go beyond what was reasonable in the circumstances.
The Court found that the right to respect for private life and correspondence (Article 8 ECHR) had been violated. The interferences did not comply with domestic law (that secret surveillance authorisations be reasoned), and were therefore not in accordance with the law. The decisions issued by the preliminary investigation judges included only “superficial and declaratory statements“, whereas the prosecutors’ authorisations did not contain any reasoning at all. Retrospective provision of reasons for authorisation decisions “opened a door to arbitrariness contrary to the guarantees under Article 8” (Dragojević v Croatia, No. 68955/11, 15.1.15, para. 98).
The Court awarded the second and third applicants, and the first and second applicant companies €2000 each for non-pecuniary damage.
Relying, inter alia, on the principles established by the Grand Chamber in Roman Zakharov v Russia, No. 47143/06, 4.12.15, and Dragojević v. Croatia, the Court’s approach to Article 8 was confirmatory rather than innovative. The judgment draws attention to the rule of law principle stating that “it would be contrary to the rule of law for the legal discretion granted to the executive or to a judge to be expressed in terms of an unfettered power”. To accept the use of inadequate reasoning to justify surveillance, or the use of retrospective justifications to remedy these defects, with all the risks of arbitrariness this would invite, would clearly breach the rule of law ideal.
In July 2019, the Grand Chamber will further consider compliance of different surveillance regimes with the ECHR in Big Brother Watch and Others v. the United Kingdom and Centrum för rättvisa v. Sweden.