In today’s Chamber judgment in the case of UAB Kesko Senukai Lithuania v. Lithuania (application
no. 19162/19) the European Court of Human Rights held, unanimously, that there had been:
a violation of Article 8 (right to respect for home and correspondence) of the European Convention
on Human Rights.
The case concerned an inspection of Kesko Senukai Lithuania’s registered office in 2018 by the
Competition Council while the company, along with several other companies, had been under
investigation for alleged price fixing. The national courts refused to review the inspection.
The Court found in particular that the lack of judicial review in the case had removed the legal
safeguards against arbitrariness and abuse in how the inspection had been carried out.
Article 8 of the Convention could not be interpreted as requiring a judicial review after the fact in all
cases concerning a search or seizure carried out in the premises of a commercial company. However,
according to the Court’s case-law, the availability of such a review may be taken into account, along
with other factors, when assessing the compliance of searches and seizures with Article 8.
There were a number of procedural safeguards in Lithuanian law regarding how such inspections
should be conducted. However, the applicant company did not question the legal framework, rather
that the Competition Council had gone beyond their remit by seizing a large amount of information
and by restricting the rights of its staff. Those complaints could in no way be seen as ill-founded.
Indeed, the Competition Council had not refuted the allegations concerning material seized or
restrictions on staff phone usage and so forth, instead merely arguing that those actions had been
lawful. Therefore, Kesko Senukai Lithuania had a legitimate interest in having the courts review
whether the officials’ actions had complied with its Article 8 rights.
The national courts had refused to examine its complaint, however, because they considered that
such complaints could not be examined by the courts at all. However, Lithuanian law provided for
the possibility to appeal against decisions taken by the Competition Council before the
administrative courts, and those courts had in the past examined several complaints similar to that
of Kesko Senukai Lithuania. There was no indication that a judicial review of the Competition
Council’s decisions would have any negative effect on ongoing investigations.
Moreover, the Competition Council demand that the applicant justify the exclusion of each
individual document had been disproportionate.
Lastly, since the investigation against Kesko Senukai Lithuania had eventually been discontinued, its
complaints against the Competition Council had not been examined at any stage of the domestic
The lack of judicial review had meant that there had not been effective safeguards against
arbitrariness and abuse in the case. There had therefore been a violation of Article 8.
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