Judgment of the ECHR of January 30, 2020 in the case Vinks and Ribicka v. Latvia (application no. 28926/10).
In 2010, the applicant received assistance in preparing an application. Subsequently, the application was communicated to Latvia.
The case successfully addressed an application about a search carried out in the applicants' house as part of an investigation of economic crimes, without providing any guarantees against abuse. The case violated the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
As part of the investigation of economic crimes, the police conducted a search of the applicants 'house with the participation of officers of the special anti-terrorist unit: armed officers of the special police unit "Omega" entered the applicants' house through the windows, followed by the financial police officers (VID FPP) who searched ...
The applicants complained, inter alia, that the search and the participation of the special unit officers were not justified by any factual circumstances, but by a desire to take revenge on the applicant in connection with the fact that he had previously been a witness in a corruption case in which two officers were accused financial police.
QUESTIONS OF LAW
Compliance with Article 8 of the Convention. The risk of abuse of authority and humiliation of human dignity is especially possible in situations such as in the present case, not only because the intrusion into the applicants' privacy was serious (see below), but also because the request for intervention by the anti-terrorist unit came from their colleagues , in respect of whom a criminal case was investigated on the fact of committing crimes related to corruption. The applicant testified against these officers and the search was carried out by the same department of the financial police where these officers worked.
Due to the lack of guarantees in the present case, the impugned interference could not be considered proportionate to the aim pursued for the following reasons.
(a) Deficiencies in the search. None of the guarantees provided for by Latvian law appeared to provide the applicants with effective protection. These guarantees were as follows:
(i) preliminary judicial review. The Financial Police's request for permission to conduct the search was based on the suspicion that the applicant was involved in large-scale tax evasion and money-laundering involving more than 60 companies. These suspicions were based on the materials of the criminal case, and the proceedings on it were preceded by an operational verification of these facts.
The applicant's main argument was that he was not associated with any of the companies that were involved in the relevant crimes. The Court was unable to establish whether such a position was justified. However, the investigation of the criminal case that had been opened against the applicant lasted more than 10 years and remained at the stage of preliminary investigation, which was carried out by the same police department whose officers carried out the search.
It should be noted that the investigating judge examined the materials of the case presented to him. However, he did not indicate the factors that linked the applicant to the companies in respect of which the investigation was carried out. In his analysis, the president of the relevant court did not respond to the arguments specifically voiced by the applicant in this regard.
(ii) Follow-up control by prosecutors. Although prosecutors at various levels reviewed the case file on several occasions and requested additional information from various police authorities, they relied heavily on the findings presented by the same authorities, whose actions the prosecutors were supposed to verify, and concluded that the assistance of the special police unit was justified. and that Omega staff acted in accordance with internal rules and “taking into account the circumstances”.
Since the prosecutors did not respond to the applicants' specific arguments or provide any further information, the prosecutor's control over the assistance of the special police unit did not provide an effective defense in the present case.
(b) Lack of legal grounds for participating in the search of the officers of the special police unit. The assistance of the Omega Anti-Terrorist Unit was requested by the Financial Police as part of a larger operation. However, although this operation involved 19 simultaneous searches, the assistance of specially trained and armed officers was requested for only two searches, including the search at the applicant's house.
Only compelling reasons could justify such a serious interference with the applicants' private life, such as the forced entry into the house through the windows in the early morning using coercive measures and weapons against the applicants and the applicant's minor daughter.
The Court should not speculate about the elements relied on by the relevant authorities to justify the need for the participation of the Omega anti-terrorist unit in the search of the applicants' house. However, the alleged presence of armed persons or guard dogs in the premises or the possibility of finding firearms during the search, to which the references were made, appeared to be either unfounded or related to another suspect.
It can be agreed that the involvement of special police units could be considered necessary under certain circumstances. However, a mere reference to general provisions on coordination between different authorities or to the internal rules of the Omega anti-terrorist unit, insofar as the latter provided assistance to law enforcement agencies in difficult situations, was not sufficient, in the Court's opinion, to ensure that create a legal framework capable of providing adequate and effective safeguards against abuse and arbitrariness.
Such safeguards may include the adoption of regulatory measures that restrict the use of special forces to situations where ordinary police intervention cannot be considered safe and sufficient, as well as provide additional safeguards (see, for comparison, Kucera v. Slovakia) (Kučera v. Slovakia) dated 17 July 2007, application no. 48666/99).
There was a violation of Article 8 of the Convention in the case (adopted unanimously).
Application of Article 41 of the Convention. The Court awarded each of the applicants EUR 1,500 in respect of non-pecuniary damage; the applicant's claims for pecuniary damage were dismissed.