A judgment in the case on execution of investigatory operations has been adopted
The Constitutional Court has adopted a judgment in the case No. 2010-55-0106 “On Compliance of Section 7 (5) of the Investigatory Operations Law with Article 96 of the Satversme of the Republic of Latvia, Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well a compliance of the First Sentence of Section 35 (1) of the Investigatory Operations Law with Article 92 of the Satversme of the Republic of Latvia”.
Pursuant to Article 96 of the Satversme, everyone has the right to inviolability of his or her private life. Article 92 of the Satversme provides, among the rest, that everyone has the right to defend his or her rights and lawful interests in a fair court. Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – the Convention) establishes that everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.
The contested norms provide that in cases where immediate action is required in order to avert terrorism, murder, gangsterism, riots, other serious or especially serious crime, as well as where the lives, health or property of persons are in real danger, the investigatory operations measures referred to in Paragraph four of this Section may be performed without the approval of a judge. The prosecutor shall be notified within 24 hours, and approval of a judge shall be obtained within 72 hours, regarding such measures. Otherwise the conduct of the investigatory operations measures shall be discontinued. Monitoring regarding the conformity to law of investigatory operations shall be performed by the Prosecutor General and by prosecutors specially authorised by the Prosecutor General.
The applicant Mr. Mairis Meimanis held that the contested norm permit arbitrary and uncontrolled interference within private life of a person. Namely, institutions can perform eavesdropping of phone calls of a person without permission of the court. However, in cases when investigatory operations are ceased before the end of the term of 72 hours, the court is not informed on such eavesdropping.
The Constitutional Court indicated that no such interpretation of Section 7 (5) of the Investigatory Operations Law (hereinafter – the Law) that investigatory operations that are launched without permission of a judge and terminated before the expiry of the term of 72 hours need no consent by a judge is permissible. The Court concluded investigatory operations performed with the purpose to prevent the criminal delinquencies referred to in the Law shall be regarded as proportional and commensurate with Article 96 of the Satversme only in case if a consent of the chairperson of the Supreme Court or a judge of the Supreme Court specially authorised by him or her has been received disregarding the term of fulfilment of the said operations.
The Court also indicated that the duty established in the Law, namely, the duty to notify the Prosecutor regarding such measures, means that the Prosecutor shall perform monitoring of compliance of measures of investigatory operations with requirements of the Law, which would thus ensure observance of the fundamental rights of a person. In the case of ungrounded infringement of the rights, a person has the right to request eliminating or compensating the detriment caused to him or her.
Consequently, the Constitutional Court recognized Section 7 (5) of the Law as compliant with Article 96 of the Satversme and Article 13 of the Convention, whilst the first sentence of Section 35 (1) of the Law – as compliant with Article 92 of the Satversme and Article 13 of the Convention.
The judgment of the Constitutional Court is final and not subject to appeal.
Linked case: 2010-55-0106