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CASE OF NAUMENKO AND SIA RIX SHIPPING v. LATVIA
CASE OF NAUMENKO AND SIA RIX SHIPPING v. LATVIA
JUDGMENT
STRASBOURG
23 June 2022
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
NAUMENKO AND SIA RIX SHIPPING v. LATVIA JUDGMENT
INTRODUCTION
1. The case concerns the applicants’ allegations under Article 8 of the
Convention that a search of the second applicant’s business premises and the
seizure of large amounts of documents and electronic files in an unannounced
operation (“dawn raid”) by the Competition Authority (Konkurences
padome) was unlawful and disproportionate and that procedural safeguards
were insufficient.
THE FACTS
2. The first applicant was born in 1973 and lives in Riga. He is the sole
owner and board member of the second applicant, a limited liability company
established in 2008, registered in Latvia and providing shipping agency
services. The applicants were represented by Mr K. Oļehnovičs, a lawyer
practising in Riga.
3. The Government were represented by their Agent, Ms K. Līce.
4. The facts of the case, as submitted by the parties, may be summarised
as follows.
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waiting for the arrival of the applicants’ lawyer, at around 11.10 a.m. they
carried out a search of those premises. In particular, they examined invoices
and other accounting documents and the information available on the first
applicant’s computer, which was located in his office, and the second
applicant’s server, which was located in a special room. After allowing for
short consultations with the applicants’ lawyer, at around 11.30 a.m. the
officials started to question the first applicant, who offered his full
cooperation. The first applicant asked the officials not to seize any originals
of accounting documents; that request was granted. At around 2.50 p.m. an
IT expert arrived on the premises. At around 4 p.m. the police officer left,
with the mutual agreement of the parties concerned.
9. According to the relevant record, the officials of the Competition
Authority seized two invoices issued by the second applicant (dating
from 2012), the first applicant’s emails (dating from 2014), and letters
addressed to clients by the second applicant (dating from 2009 and 2014). It
was also noted that they created and seized a mirror copy from the data stored
on the first applicant’s computer (see paragraph 10 below) and the second
applicant’s server (see paragraph 11 below).
10. As to the first applicant’s computer, he protested about the
indiscriminate copying of his old correspondence with no connection to the
second applicant (including emails dating from 1993), and relating to his
private life. Passwords for his email accounts had been copied, allowing
further access. He pointed out that any leaks might cause significant damage
to the commercial activities of the second applicant. The IT expert agreed to
delete 70.1 GB of data; he created a new mirror copy, which amounted to
25.7 GB. According to the relevant record, the first applicant’s emails in
connection with the second applicant were copied from folders named
“a. naumenko in”, “a. naumenko out”, “administration in”, “accounting in”
and “reports in” (83,581 emails in total). According to the relevant record,
the first applicant acknowledged that the amount of data seized had been
reduced but he expressly noted that his objections had nevertheless not been
resolved.
11. The first applicant also protested that a mirror copy from the data
stored on the second applicant’s server had been made. According to the
relevant record, those data included a copy of an Outlook Express email
account, which amounted to 141 MB; however, there is no further
information about its contents or the number of files copied. The first
applicant protested about the copying of the data from the second applicant’s
server, as the Competition Authority had already acquired all the necessary
data. Emails copied from the server had not been indexed, numbered or
described. According to him, the data retained did not relate to the
administrative case and could not be used as evidence; their retention was
unjustified and unlawful. Despite the first applicant’s objections, the data in
question were retained by the authorities.
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12. The parties disagree as to what data was actually retained. According
to the first applicant, his emails allegedly of a personal nature dating from
2003 were included in the data retained; but he provided no further
information as to whether they were retained from his computer or the second
applicant’s server. According to the Government, only the second applicant’s
documents (including emails) were seized, and the first applicant’s request
that the seized documents and files be given the status of restricted access
information was granted.
13. At around 8 p.m. the operation was completed.
14. On 7 February 2014 the first applicant, acting on behalf of the second
applicant, lodged a complaint with the President of the District Court,
requesting that the decision (see paragraph 7 above) be set aside “in so far as
it concerned the second applicant”. The impugned decision had not referred
to any circumstances that could lead to the conclusion that a prohibited
agreement might have been entered into; the second applicant had not been a
member of the NALSA. There had been no necessity to search the property
of the second applicant, its officials and employees, and to examine their
property items, documents and electronic files. The impugned decision had
contained no reasoning as to why specifically the investigative actions set out
in section 9(5)(4) and 9(5)(5) of the Competition Law, which were very
intrusive, had been justified and proportionate. It had been drafted in very
broad terms and had authorised the Competition Authority to carry out
searches with respect to an unidentified group of persons for an indeterminate
amount of time. As a result, the power to decide on searches had been left
entirely within the discretion of the Competition Authority – an outcome that
was contrary to the purpose of the Competition Law, which required judicial
authorisation. The impugned decision had failed to observe a fair balance
between the need to acquire the necessary information and the need to protect
human rights.
15. On 18 February 2014 the President of the District Court dismissed that
complaint. She considered that the judicial authorisation had been issued in
accordance with the law; there were no grounds to quash or amend it. The
President referred to the domestic legal provisions and noted that the
Competition Authority had competence to verify suspicions and obtain
information about prohibited agreements. It had been authorised to carry out
specific procedural actions under section 9(5)(4) and 9(5)(5) of the
Competition Law on the basis of a judicial authorisation.
16. The judicial authorisation of 14 January 2014 had complied with
section 91(1) of the Competition Law. The President considered that the judge
had duly assessed the necessity of the requested procedural actions. As
required under section 91(1), the judge had examined the material submitted
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18. The relevant provisions of European Union (“EU”) law and practice
are set out in DELTA PEKÁRNY a.s. v. the Czech Republic (no. 97/11,
§§ 52-55, 2 October 2014).
19. Section 9(5) of the Competition Law sets out the actions which the
Competition Authority is allowed to carry out when supervising the market
or investigating potential violations of, inter alia, the Competition Law.
These include the following, in particular:
“(4) on the basis of a judicial warrant, without prior notice and in the presence of the
police, [the Competition Authority is authorised] to enter non-residential premises,
vehicles, apartments, buildings and other movable and immovable objects that are in
the ownership, possession or use of a market participant or of an association of market
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participants, to open [those objects] and the storage facilities therein, to carry out a
forcible search of those objects and storage facilities, and to examine the property items
and documents therein, including the information (data) stored in an electronic
information system – computers, floppy disks and other information media. If a person
whose property undergoes a search refuses to open the objects or the storage facilities
therein, the officials of the Competition Authority shall be authorised to open them,
without causing substantial harm. During the search and examination, the officials of
the Competition Authority shall be entitled to:
(a) prohibit the persons who are present at the site from leaving it without permission,
from moving and from conversing among themselves until the end of the search and
examination;
(b) become acquainted with the information included in the documents and in the
electronic information system (including information containing commercial secrets);
(c) seize any property items and documents which may be of importance to the case;
(d) request and receive document copies that are certified in accordance with the
procedures laid down in laws and regulations;
(e) print out or record to an electronic information medium the information (data)
stored in the electronic information system;
(f) request and receive written or oral explanations from the employees of the market
participant;
(g) seal the non-residential premises, vehicles, buildings and other objects and the
storage facilities therein for a period of up to seventy-two hours, in order to ensure the
preservation of evidence;
(5) on the basis of a judicial warrant, if there is reasonable suspicion that documents
or property items that might serve as evidence of a violation of this Law are being stored
in the non-residential premises, vehicles, apartments, buildings and other movable and
immovable objects that are in the ownership, possession or use of other persons, [the
Competition Authority is authorised] to perform, in the presence of the police, the
actions listed in sub-paragraph 4 of this paragraph in relation to such persons ...”
20. Section 91(1) of the Competition Law (as in force at the relevant time
and until 15 June 2016) provided that a warrant authorising the actions listed
in section 9(5)(4) and 9(5)(5) of that Law had to be issued by a judge of a
district court. The judge had to examine, within seventy-two hours, the
application by the Competition Authority and the documents justifying the
necessity of such activities, hear the information provided by the officials of
the Competition Authority, and decide on whether to give or refuse
permission for the actions. A complaint against a warrant issued on that basis
had to be lodged with the president of the district court within ten days from
the date of its receipt (section 91(3)). A decision taken by the president of the
district court was final and not subject to appeal (section 91(4)). The evidence
obtained on the basis of a warrant that had been revoked or amended could
not be used to the extent to which that warrant had been found to be unlawful
(section 91(6)).
21. Section 92 (1) of the Competition Law provides that records must be
drawn up in relation to the procedural actions taken in relation to supervision
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25. Thirteen cases were analysed. In all those cases a judge had granted
authorisations for procedural actions sought by the Competition Authority.
Complaints against those authorisations had been lodged in two cases. In both
cases, the President of the District Court had dismissed the complaints as the
authorisations had been issued in accordance with the law.
26. In all cases the court’s findings had been based on a summary of the
application made by the Competition Authority. Those decisions contained
statements that there had been no other means of obtaining evidence, without
providing any further details. Procedural actions were authorised not only in
relation to specific legal persons, but also in relation to “other persons”
without them being identified.
27. The following conclusions and recommendations were made:
“1. Currently, a regulatory framework for the courts to examine the cases mentioned
in this report is lacking [iztrūkst].
2. ... [These] cases should be examined by an investigating judge in accordance with
the requirements laid down in section 91 of the Competition Law.
3. When authorising procedural actions listed in section 9(5)(4) and 9(5)(5) of the
Competition Law, the judge must indicate on what grounds the application by [the
Competition Authority] substantiates the necessity to carry out specific actions and how
justified the suspicion is that evidence of a violation may be located in the specific
premises.
4. The judge’s written decision must indicate where [and] at which property [the
procedural actions are to be carried out], and what items, documents or information are
to be searched and seized, in so far as this has been determined.
5. The judge must indicate a time-limit for carrying out procedural actions, that is,
until what date [such actions] are authorised.
6. [This analytical report] is to be sent to the Ministry of Justice and the Competition
Authority for information and for consideration as to whether legislative amendments
to the Competition Law, and in particular section 91, are necessary.”
28. Since 15 June 2016 section 91 of the Competition Law has been
repealed in its entirety and more detailed rules on judicial authorisation, its
scope and the limits on procedural actions have been set out in other
provisions of the Competition Law (chapter II1, sections 101 to 107). In
particular, section 104(1) of the Competition Law provides as of that date as
follows:
“In its decision to authorise the performance of the actions referred to in
section 9(5)(4) and 9(5)(5), the judge shall specify in respect of which market
participants or their association or [other] persons the procedural actions need to be
performed, the subject [matter] and purpose of these actions, and, to the best of his or
her knowledge, what assets, information or documents are going to be searched for, as
well as the time-limit for carrying out procedural actions.”
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THE LAW
29. The applicants complained that the search of the second applicant’s
business premises and the seizure of large amounts of documents and
electronic files had been unlawful and disproportionate, and that the
procedural safeguards put in place had been insufficient. They relied on
Articles 6 and 8 of the Convention.
30. The Court, being the master of the characterisation to be given in law
to the facts of a case (see Radomilja and Others v. Croatia [GC],
nos. 37685/10 and 22768/12, § 114, 20 March 2018), considers that this
complaint falls to be examined solely under Article 8 of the Convention,
which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home 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.”
A. Admissibility
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relation to the alleged retention of his personal data. While he alleged that his
old personal emails had been retained, he did not provide any further
information as to what specific data unrelated to the second applicant’s
business activities had actually been retained (see paragraph 12 above).
According to the relevant procedural record, the domestic authorities retained
only the second applicant’s documents, including the first applicant’s emails
in connection with the second applicant (see paragraphs 10 and 12 above). It
appears that passwords for the first applicant’s email accounts were not
retained as the data in question had been deleted at his request (see
paragraph 10 above).
35. Furthermore, when challenging the judicial authorisation of
14 January 2014, the first applicant – acting on behalf of the second
applicant – requested that it be set aside “in so far as it concerned the second
applicant”; he did not raise any specific issues with the President of the
District Court in relation to the alleged retention of his personal data (see
paragraph 14 above).
36. Taking into account the fact that the first applicant did not sufficiently
demonstrate that he was personally and directly affected either by the
operation carried out by the Competition Authority in the business premises
of the second applicant or by the judicial review carried out by the President
of the District Court, the Court finds that there was no interference with his
rights under Article 8 of the Convention. This should not, however, prevent
the Court from taking into account, in its wider assessment of the merits of
the application, the second applicant’s interest in protecting its “officials”,
“employees” and “other persons” (see paragraph 42 below) given the wide
scope of the judicial authorisation in the present case (compare Bernh Larsen
Holding AS and Others v. Norway, no. 24117/08, §§ 90 and 107, 14 March
2013).
37. It follows that the first applicant’s complaint is incompatible ratione
personae with the provisions of the Convention within the meaning of
Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
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B. Merits
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crime in the area of competition policy. Lastly, the judicial authorisation had
provided a detailed analysis of the factual and legal situation and had been
based on sufficiently reasonable suspicion since there was evidence to believe
that the second applicant was party to an illegal cartel agreement. According
to the Government, the second applicant had been a member of the NALSA.
44. Regarding the lawfulness and scope of the judicial authorisation, the
Government submitted that it had clearly identified the objects to be searched
and seized, since the operation at the second applicant’s premises had been
aimed at finding evidence in the investigation into anti-competitive practices.
A procedural record had been issued to the second applicant, and its legal
counsel had been present during the entire operation.
(i) Whether the interference was “in accordance with the law”
48. The Court notes that the impugned measure had a statutory basis,
namely section 9(5)(4) and 9(5)(5) of the Competition Law. The District
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Court, acting under those provisions and in accordance with section 9(1)1 of
the Competition Law, authorised the Competition Authority to carry out a
wide range of procedural actions. There is no indication in the case material
that the judicial authorisation was issued in breach of any rules of the
domestic law or was otherwise incompatible with the requirement of
lawfulness. While some of the second applicant’s arguments concerning the
allegedly excessive scope of the discretion left to the Competition Authority
by the judicial authorisation to carry out the search and seizures may be
understood as being also directed against the “quality” of the relevant
domestic law which allowed such an approach, the Court considers that those
issues should be examined below as part of the analysis regarding
justification and safeguards. It therefore proceeds on the basis that the
interference complained of was “in accordance with the law”.
49. The Court accepts that the impugned measure pursued the legitimate
aim of both “the economic well-being of the country” and “the prevention of
crime” (see Société Colas Est and Others, § 44, and Vinci Construction
and GTM Génie Civil et Services, § 72, both cited above).
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applied than would have been the case had it concerned an individual (see
Bernh Larsen Holding AS and Others, cited above, §§ 158-59, and the cases
cited therein).
52. With regard to the safeguards against abuse set forth in Latvian law,
the Court notes that the impugned operation was carried out on the basis of
an authorisation issued by the District Court. The operation was therefore
subject to prior judicial scrutiny (contrast Société Colas Est and Others, § 45,
and DELTA PEKÁRNY a.s., § 86, both cited above).
53. The judge of the District Court issued the authorisation following an
application to that effect lodged by the Competition Authority. As to whether
there were “relevant and sufficient” reasons to consider the impugned
operation necessary, the judge of the District Court relied on the material
provided by the Competition Authority indicating that the NALSA might
have entered into a prohibited agreement distorting competition for services
rendered by shipping agents. The parties disputed whether the second
applicant was a member of the NALSA at the material time, but it is clear that
the second applicant was a shipping agent and market participant. The
authorities relied on one piece of evidence possibly pointing to the second
applicant’s implication in the alleged anti-competitive practice under
investigation: an invoice issued by it containing a reference to the
“Recommended scale of agency fees” (see paragraph 6 above). The Court
notes that the second applicant did not deny having issued such an invoice
and that the Competition Authority submitted it to the District Court together
with other material, providing explanations regarding their suspicion
concerning anti-competitive practices. While the District Court did not
provide any further reasons as to why the Competition Authority targeted the
NALSA and some selected market participants, including the second
applicant, but not others, the Court is prepared to accept that the District Court
examined the information provided to it by the Competition Authority in that
regard. Accordingly, the necessity to carry out the impugned operation was
subject to prior judicial scrutiny and “relevant and sufficient” reasons were
given in that respect.
54. As to the scope of the judicial authorisation, the Court considers that
it was formulated in rather broad terms. It referred to a wide range of
procedural actions, such as searches and examinations during which officials
of the Competition Authority were allowed not only to seize any property
items or documents but also to impose restrictions of movement and
communication on anyone present at the site and also to seal premises for up
to seventy-two hours. The officials were also authorised to become
acquainted with the information (data) stored in the electronic information
systems, including sensitive information such as commercial secrets (see
paragraph 19 above). In practice, this meant that the officials were authorised
not only to examine and make mirror copies from the second applicant’s
server but also from computers of its “employees”, “officials” and “other
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62. To sum up, the Court notes that relevant safeguards are enshrined in
Latvian domestic law, most notably prior authorisation by a judge of the
District Court and its subsequent review by the President of the District Court.
In the present case, the judge of the District Court reviewed the case material
presented to her and considered that the procedural actions in relation to the
second applicant were necessary. Moreover, sufficient procedural safeguards
to counterbalance the broad discretion conferred on the officials of the
Competition Authority were put in place and applied in respect of the second
applicant. The Competition Authority was able to delimit the wide scope of
the operation to what was necessary in the specific circumstances of the
present case. While a large amount of documents and electronic files were
seized during the operation, they were sifted in order to address the second
applicant’s concerns about ensuring that only documents relating to it were
seized. The second applicant did not substantiate to what extent, if at all,
non-business-related documents or electronic data were actually seized
during the operation. Lastly, the second applicant was able to obtain a judicial
review by the President of the District Court.
63. It follows that, given the margin of appreciation left to the authorities
(see paragraph 51 above), the impugned interference with the second
applicant’s rights was proportionate to the aim pursued. Therefore, there has
been no violation of Article 8 of the Convention.
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