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FIRST
SECTION
CASE OF SMIRNOV v. RUSSIA
(Application
no. 71362/01)
JUDGMENT
STRASBOURG
7
June 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Smirnov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni,
judges,
and Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 15 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 71362/01) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Mikhail
Vladimirovich Smirnov (“the applicant”), on 27
November 2000.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights.
- The
applicant alleged, in particular, a violation of the right to respect
for his home and the right to peaceful enjoyment of possessions as
regards the search at his place of residence and the retention of his
computer. He also claimed that he did not have an effective remedy in
respect of the latter complaint.
- By
a decision of 30 June 2005 the Court declared the application partly
admissible.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1956 and lives in St Petersburg. The applicant
is a lawyer; at the material time he was a member of the
St Petersburg United Bar Association (Санкт-Петербургская
объединенная
коллегия
адвокатов).
A. Search at the applicant's home
- On
20 January 1999 the St Petersburg City Prosecutor opened criminal
case no. 7806 against Mr Sh., Mr G. and fifteen other persons who
were suspected of forming and participating in an organised criminal
enterprise and of other serious offences.
- On
7 March 2000 Mr D., an investigator with the Serious Crimes
Department in the prosecutor's office, issued a search warrant which
read in its entirety as follows:
“Taking into account that at the [applicant's]
place of residence at the address [the applicant's home address]
there might be objects and documents that are of interest for the
investigation of criminal case [no. 7806], I order a search of the
premises at the address [the applicant's home address] where [the
applicant] permanently resides and the seizure of objects and
documents found during the search.”
- On
the same day a St Petersburg deputy prosecutor approved the search
and countersigned the warrant.
- The Government claimed that the applicant had not been
a party to criminal case no. 7806 and had not represented anyone
involved. The applicant maintained that he had been a representative
of:
(a) Mr
S., who had been first a suspect and later a witness in criminal case
no. 7806. On 21 February 2000 the applicant had represented Mr
S. before the Oktyabrskiy Court of St Petersburg in proceedings
concerning a complaint about a decision by the investigator D. The
applicant had also been S.'s representative in unrelated civil
proceedings on the basis of an authority form of 25 May 1999;
(b) Mr
Yu., who had been a defendant in criminal case no. 7806 and whom the
applicant had represented from 10 July to 25 December 1998;
(c) Mr
B., who had been the victim in a criminal case concerning the murder
of his son. Subsequently that case had been joined to criminal case
no. 7806. The applicant had represented Mr B. from 11 February to
23 March 2000;
(d) Mr
Sh., who had been a defendant in criminal case no. 7806 and whom the
applicant had represented before the Court (application
no. 29392/02).
- On
9 March 2000 the investigator D., in the presence of the applicant,
assisted by police officers from the Organised Crime District
Directorate (РУБОП)
and two attesting witnesses (понятые),
searched the applicant's flat. According to the record of the search,
the applicant was invited to “voluntarily hand over...
documents relating to the public company T. and the federal
industrial group R.”. The applicant responded that he had no
such documents and countersigned under that statement.
- The
investigator found and seized over twenty documents which the
applicant declared to be his own and the central unit of the
applicant's computer. According to the record of the search, the
applicant had no complaints about the way the search was carried out,
yet he objected to the seizure of the central unit because it
contained two hard disks and was worth 1,000 United States dollars.
The seized documents included, in particular, Mr S.'s power of
attorney of 25 May 1999 and extracts of a memorandum in Mr B.'s case.
- On
the same date the investigator D. held a formal interview with the
applicant in connection with criminal case no. 7806.
- On
17 March 2000 the investigator L. issued an order for the attachment
of the documents seized at the applicant's flat and the central unit
of his computer as “physical evidence” in criminal case
no. 7806.
B. Judicial review of the search and seizure orders
- The
applicant complained to a court. He sought to have the search and
seizure of the documents declared unlawful. He claimed, in
particular, that the central unit of the computer, his personal
notebook and his clients' files and records were not related to the
criminal case and could not be attached as evidence because the
seizure had impaired his clients' defence rights.
- On 19 April 2000 the Oktyabrskiy Court of the
Admiralteyskiy District of St Petersburg heard the applicant's
complaint. The court found that the search had been approved and
carried out in accordance with the applicable provisions of the
domestic law and had therefore been lawful. As to the attachment of
the computer, the court ruled as follows:
“...the purpose of the search was to find objects
and documents in connection with a criminal case. During the search a
number of documents and a computer central unit were seized; they
were thoroughly examined by the investigator, as is evident from the
record of the examination of the seized items and printouts of the
files contained in the central unit.
Accordingly, the above shows that the aim of the search
has been achieved; however, the order to attach the seized objects
and documents as evidence in the criminal case amounts to the
forfeiture of the [applicant's] property which was taken from him and
never returned, whereas [the applicant] was neither a suspect nor a
defendant in the criminal case and was interviewed as a witness.
Under such circumstances, the constitutional rights of
the applicant, who was deprived of his property, were violated.
Having achieved the purpose of the search and recorded the results
received, the investigator, without any valid and lawful grounds,
declared [the applicant's property] to be physical evidence...”
- The
District Court ordered that the applicant's documents, his notebook
and the central unit be returned to him.
- On
25 May 2000 the St Petersburg City Court quashed the judgment of 19
April 2000 and remitted the case for a fresh examination by a
differently composed court. The City Court pointed out that the
first-instance court had erroneously taken the order for the
attachment of objects as evidence of the forfeiture of the
applicant's property.
- On
6 June 2000 the investigator returned the notebook and certain
documents, but not the computer, to the applicant.
- On
2 August 2000 the applicant brought a civil action against the
St Petersburg City Prosecutor's Office and the Ministry of
Finance, seeking compensation for the non-pecuniary damage incurred
as a result of the seizure of his belongings.
- On
17 August 2000 the Oktyabrskiy Court of St Petersburg held a new
hearing on the applicant's complaint. The court ruled that the search
of the applicant's flat had been justified and lawful and that the
remainder of the applicant's complaints were not amenable to judicial
review.
- On
12 September 2000 the St Petersburg City Court quashed the judgment
of 17 August 2000 and remitted the case for a fresh examination by a
differently composed court. The City Court found that the
first-instance court had failed to examine, in a sufficiently
thorough manner, whether the investigator had had sufficient grounds
to search the flat of a person who had not been charged with any
criminal offence.
- On 17 November 2000 the Oktyabrskiy Court of St
Petersburg delivered the final judgment on the applicant's complaint.
As regards the lawfulness of the search, the court found as follows:
“The search warrant was issued because there were
sufficient reasons [to believe] that [at the applicant's home
address] where [the applicant] lived there could be objects and
documents that could be used as evidence in connection with one of
the counts in criminal case no. 7806. This fact was established by
the court and confirmed by the materials in the case file, in
particular, a statement by the investigator D[.] of 16 November
2000, the decision to bring charges of 22 February 1999, the decision
to lodge an application for an extension of detention on remand of 10
July [? - unclear] 2000, letter no. 200409 of 22 September 1998
and other materials; therefore, the court comes to the conclusion
that the search in [the applicant's] flat was justified under Article
168 of the RSFSR Code of Criminal Procedure...”
- The
court further established that the search had been carried out in
strict compliance with the laws on criminal procedure. As regards the
remainder of the applicant's claims, the court decided that it was
not competent to examine them, but that it was open to the applicant
to complain about the investigator's decisions to a supervising
prosecutor.
- On
19 December 2000 the St Petersburg City Court dismissed an appeal by
the applicant. It upheld the District Court's finding that the search
at the applicant's flat had been justified and procedurally correct
and that the order to attach objects as evidence was not amenable to
judicial review because such an avenue of appeal was not provided for
in domestic law.
- The
applicant's civil claim for damages has not been examined to date.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Searches at a person's home
- Article 25 of the Constitution establishes that the
home is inviolable. No one may penetrate into the home against the
wishes of those who live there unless otherwise provided for in a
federal law or a judicial decision.
- Article 168 of the RSFSR Code of Criminal Procedure
(“Grounds for carrying out a search”) provided that an
investigator could carry out a search to find objects and documents
that were of relevance to the case, provided that he had sufficient
grounds to believe that such objects and documents could be found in
a specific place or on a specific person. The search could be carried
out on the basis of a reasoned warrant issued by an investigator and
approved by a prosecutor.
- Searches and seizures were to be carried out in the
presence of the person whose premises were being searched or adult
members of his family. Two attesting witnesses were to be present as
well (Article 169). Any person having no interest in the case could
be an attesting witness. Attesting witnesses were required to certify
the scope and results of the search, and could make comments which
were to be entered into the search record (Article 135).
- A
complaint against the actions of an investigator could be submitted
either directly to a prosecutor or through the person against whom
the complaint was lodged. In the latter case the person concerned was
to forward the complaint to the prosecutor within twenty-four hours,
together with his explanations (Article 218). The prosecutor was to
examine the complaint within three days and give a reasoned decision
to the complainant (Article 219).
- On
23 March 1999, the Constitutional Court determined that decisions and
actions of investigators and prosecutors relating to searches,
seizure of property, suspension of proceedings and extension of
time-limits for preliminary investigations should be amenable to
judicial review on an application by the person whose rights had been
violated.
B. Physical evidence
- Article 83 of the Code of Criminal Procedure defined
physical evidence as “any objects that... carried traces of a
criminal offence... and any other objects that could be instrumental
for detecting a crime, establishing the factual circumstances of a
case, identifying perpetrators or rebutting the charges or
extenuating punishment”.
- Physical evidence was to be retained until the
conviction had entered into force or the time-limit for appeal had
expired. However, it could be returned to the owner before that if
such return would not harm ongoing criminal proceedings (Article 85).
The court was to order the return of physical evidence to its legal
owner in the final decision closing the criminal proceedings (Article
86).
C. Council of Europe recommendation
- Recommendation
(2000) 21 of the Committee of Ministers to member States on the
freedom of exercise of the profession of lawyer provides, inter
alia, as follows:
“Principle I - General principles on the freedom
of exercise of the profession of lawyer
... 6. All necessary measures should be taken to ensure
the respect of the confidentiality of the lawyer-client relationship.
Exceptions to this principle should be allowed only if compatible
with the rule of law. ”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the search carried out at his place of
residence infringed Article 8 of the Convention, which reads as
follows:
“1. Everyone has the right to respect
for... his home...
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.”
- The
Government contested that view.
A. Whether there was an interference
- The
Court observes that the search and seizure ordered by the
investigator concerned the applicant's residential premises in which
he kept his computer and certain work-related materials. The Court
has consistently interpreted the notion “home” in Article
8 § 1 as covering both private individuals' homes and
professional persons' offices (see Buck v. Germany,
no. 41604/98, § 31, ECHR 2005 IV; and Niemietz
v. Germany, judgment of 16 December 1992, Series A
no. 251 B, pp. 33-34, §§ 29-31). It follows
that in the present case there has been an interference with the
applicant's right to respect for his home.
B. Whether the interference was justified
- The
Court has next to determine whether the interference was justified
under paragraph 2 of Article 8, that is, whether it was “in
accordance with the law”, pursued one or more of the legitimate
aims set out in that paragraph and was “necessary in a
democratic society” to achieve that aim or those aims.
1. Whether the interference was “in accordance
with the law”
- The
applicant claimed that the interference was not “in accordance
with the law” because the search had been authorised by a
deputy prosecutor rather than by a court, as the Constitution
required. The Court observes that under the Russian Constitution, the
right to respect for a person's home may be interfered with on the
basis of a federal law or a judicial decision (see paragraph 26
above). The RSFSR Code of Criminal Procedure – which had the
status of federal law in the Russian legal system – vested the
power to issue search warrants in investigators acting with the
consent of a prosecutor (see paragraph 27 above). The Court is
satisfied that that procedure was followed in the present case and
that the interference was therefore “in accordance with the
law”.
2. Whether the interference pursued a legitimate aim
- The
Government submitted that the interference had pursued the legitimate
aim of the protection of rights and freedoms of others.
- The
Court notes that the purpose of the search, as set out in the
investigator's decision, was to uncover physical evidence that might
be instrumental for the criminal investigation into serious offences.
Accordingly, it pursued the legitimate aims of furthering the
interests of public safety, preventing disorder or crime and
protecting the rights and freedoms of others.
3. Whether the interference was “necessary in a
democratic society”
-
The applicant claimed that his flat had been searched with a view to
obtaining evidence against his clients, including Mr S., Mr Yu., Mr
B. and many others, and gaining access to the clients' files stored
on his computer. The search had violated the lawyer-client privilege
and had been followed by a formal interview in which the investigator
D. had questioned him about the circumstances of which he had become
aware as his clients' representative.
- The
Government submitted that the decision to search the applicant's flat
had been based on witness testimony and that the search had been
necessary because “objects and documents of importance for the
investigation of criminal case no. 7806” could have been found
in the applicant's flat. The applicant had not objected to the
search.
43. Under
the Court's settled case-law, the notion of “necessity”
implies that the interference corresponds to a pressing social need
and, in particular, that it is proportionate to the legitimate aim
pursued. In determining whether an interference is “necessary
in a democratic society” the Court will take into account that
a certain margin of appreciation is left to the Contracting States
(see, among other authorities, Camenzind v. Switzerland,
judgment of 16 December 1997, Reports of Judgments and Decisions
1997 VIII, p. 2893, § 44). However, the exceptions
provided for in paragraph 2 of Article 8 are to be
interpreted narrowly, and the need for them in a given case must be
convincingly established (see Buck, cited above, § 44).
44. As
regards, in particular, searches of premises and seizures, the Court
has consistently held that the Contracting States may consider
it necessary to resort to such measures in order to obtain physical
evidence of certain offences. The Court will assess whether the
reasons adduced to justify such measures were “relevant”
and “sufficient” and whether the aforementioned
proportionality principle has been adhered to. As regards the latter
point, the Court must first ensure that the relevant legislation and
practice afford individuals adequate and effective safeguards against
abuse. Secondly, the Court must consider the particular circumstances
of each case in order to determine whether, in the concrete case, the
interference in question was proportionate to the aim pursued. The
criteria the Court has taken into consideration in determining this
latter issue have been, among others, the circumstances in which the
search order had been issued, in particular further evidence
available at that time, the content and scope of the
warrant, the manner in which the search was carried out, including
the presence of independent observers during the search, and the
extent of possible repercussions on the work and reputation of the
person affected by the search (see Buck, cited above,
§ 45; Chappell v. the United Kingdom, judgment of 30
March 1989, Series A no. 152 A, p. 25, § 60;
Camenzind, cited above, pp. 2894-95, § 46; Funke
v. France, judgment of 25 February 1993, Series A no. 256 A,
p. 25, § 57; and Niemietz, cited above, pp. 35-36,
§ 37).
- With
regard to the safeguards against abuse existing in the Russian
legislation the Court observers that, in the absence of a requirement
for prior judicial authorisation, the investigation authorities had
unfettered discretion to assess the expediency and scope of the
search and seizure. In the cases of Funke, Crémieux and
Miailhe v. France the Court found that owing, above all, to
the lack of a judicial warrant, “the restrictions and
conditions provided for in law... appear[ed] too lax and full of
loopholes for the interferences with the applicant's rights to have
been strictly proportionate to the legitimate aim pursued” and
held that there had been a violation of Article 8 of the Convention
(see Funke, cited above, and Crémieux v. France
and Miailhe v. France (no. 1), judgments of 25
February 1993, Series A nos. 256 B and 256 C). In
the present case, however, the absence of a prior judicial warrant
was, to a certain extent, counterbalanced by the availability of an
ex post factum judicial review. The applicant could, and did,
make a complaint to a court which was called upon to review both the
lawfulness of, and justification for, the search warrant. The
efficiency of the actual review carried out by the domestic courts
will be taken into account in the following analysis of the necessity
of the interference.
- The
Court observes that the applicant himself was not charged with, or
suspected of, any criminal offence or unlawful activities. On the
other hand, the applicant submitted documents showing that he had
represented, at different times, four persons in criminal case no.
7806, in connection with which the search had been ordered. In these
circumstances, it is of particular concern for the Court that, when
the search of the applicant's flat was ordered, no provision for
safeguarding the privileged materials protected by professional
secrecy was made.
- The
search order was drafted in extremely broad terms, referring
indiscriminately to “any objects and documents that [were] of
interest for the investigation of criminal case [no. 7806]”,
without any limitation. The order did not contain any information
about the ongoing investigation, the purpose of the search or the
reasons why it was believed that the search at the applicant's flat
would enable evidence of any offence to be obtained (compare
Niemietz, cited above, pp. 35-35, § 37, and Ernst and
Others v. Belgium, no. 33400/96, § 116,
15 July 2003). Only after the police had penetrated into the
applicant's flat was he invited to hand over “documents
relating to the public company T. and the federal industrial group
R.”. However, neither the order nor the oral statements by the
police indicated why documents concerning business matters of two
private companies – in which the applicant did not hold any
position – should have been found on the applicant's premises
(compare Buck, cited above, § 50). The ex post factum
judicial review did nothing to fill the lacunae in the deficient
justification of the search order. The Oktyabrskiy Court confined its
finding that the order had been justified, to a reference to four
named documents and other unidentified materials, without describing
the contents of any of them (see paragraph 22 above). The court did
not give any indication as to the relevance of the materials it
referred to and, moreover, two out of the four documents appeared
after the search had been carried out. The Court finds that the
domestic authorities failed in their duty to give “relevant and
sufficient” reasons for issuing the search warrant.
- As
regards the manner in which the search was conducted, the Court
further observes that the excessively broad terms of the search order
gave the police unrestricted discretion in determining which
documents were “of interest” for the criminal
investigation; this resulted in an extensive search and seizure. The
seized materials were not limited to those relating to business
matters of two private companies. In addition, the police took away
the applicant's personal notebook, the central unit of his computer
and other materials, including his client's authority form issued in
unrelated civil proceedings and a draft memorandum in another case.
As noted above, there was no safeguard in place against interference
with professional secrecy, such as, for example, a prohibition on
removing documents covered by lawyer-client privilege or supervision
of the search by an independent observer capable of identifying,
independently of the investigation team, which documents were covered
by legal professional privilege (see Sallinen and Others v.
Finland, no. 50882/99, § 89, 27 September
2005, and Tamosius v. the United Kingdom (dec.), no. 62002/00,
ECHR 2002-VIII). Having regard to the materials that were inspected
and seized, the Court finds that the search impinged on professional
secrecy to an extent that was disproportionate to whatever legitimate
aim was pursed. The Court reiterates in this connection that, where a
lawyer is involved, an encroachment on professional secrecy may have
repercussions on the proper administration of justice and hence on
the rights guaranteed by Article 6 of the Convention (see Niemietz,
cited above, pp. 35-36, § 37).
- In
sum, the Court considers that the search carried out, without
relevant and sufficient grounds and in the absence of safeguards
against interference with professional secrecy, at the flat of the
applicant, who was not suspected of any criminal offence but was
representing defendants in the same criminal case, was not “necessary
in a democratic society”. There has therefore been a violation
of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained under Article 1 of Protocol No. 1 about a
violation of his property rights resulting from the seizure and
retention of his documents and computer. Article 1 of Protocol No. 1
provides as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Submissions by the parties
- The
applicant submitted that the seizure of the central unit had
constituted a disproportionate interference with his property rights
and had imposed an excessive burden on him. The central unit proper
could not be used as evidence in the criminal case because it had not
been an instrument, object or product of a crime and had not borne
any traces of a crime. Furthermore, the data contained therein could
not have had any evidentiary value either, because the unit had been
in the possession of the prosecution for a long time and the data
could have been erased or modified. The applicant agreed with the
reasons set out in the judicial decision of 19 April 2000. In his
view, the prosecution should have abided by that decision rather than
contesting it on appeal. The applicant claimed that the real purpose
of the seizure had been to hinder his legal professional activities.
The unlawful withholding of his computer had deprived him of access
to more than two hundred clients' files and had been detrimental to
his legal practice as a whole. Lastly, the applicant indicated that
he had eventually received his notebook and some documents back.
- The
Government submitted that the central unit of the applicant's
computer had been sealed and attached as physical evidence in
criminal case no. 7806 in order to prevent loss of data. The
examination of the criminal case had not yet been completed. The
applicant's documents and central unit would be stored in the St
Petersburg City Court until such time as the judgment had been
delivered. Accordingly, the applicant's right to use his property had
been restricted in the public interest, with a view to establishing
the truth in criminal case no. 7806.
B. The Court's assessment
- The
Court observes that the search of the applicant's home was followed
by the seizure of certain documents, his notebook and the central
unit of his computer – that is, the part containing hard disks
with data. As the applicant eventually regained possession of his
notebook and documents, the Court will confine its analysis to the
compatibility of the retention of the computer to this day with the
applicant's right to peaceful enjoyment of possessions guaranteed by
Article 1 of Protocol No. 1.
- It
is undisputed that the applicant was the lawful owner of the
computer; in other words, it was his “possession”. The
investigator ordered that the computer be kept as physical evidence
in a criminal case until such time as the trial court had given
judgment, determining in particular the use of evidence. The Court
considers that this situation falls to be examined from the
standpoint of the right of a State to control the use of property in
accordance with the general interest.
- The
first and most important requirement of Article 1 of Protocol No. 1
is that any interference by a public authority with the peaceful
enjoyment of possessions should be lawful. In particular, the second
paragraph of Article 1, while recognising that States have the right
to control the use of property, subjects their right to the condition
that it be exercised by enforcing “laws”. Moreover, the
principle of lawfulness presupposes that the applicable provisions of
domestic law are sufficiently accessible, precise and foreseeable in
their application (see, for example, Baklanov v. Russia,
no. 68443/01, §§ 39-40, 9 June 2005, with further
references).
- The
Court observes that the decision to retain the computer was based on
the provisions of the RSFSR Code of Criminal Procedure governing the
use of physical evidence in criminal proceedings (see paragraphs 31
and 32 above). The investigator had the discretion to order retention
of any object which he considered to be instrumental for the
investigation, as was the case with the applicant's computer. The
Court has doubts that such a broad discretion not accompanied by
efficient judicial supervision would pass the “quality of law”
test but it sees no need for a detailed examination of this point for
the following reasons.
- The
Court accepts that retention of physical evidence may be necessary in
the interests of proper administration of justice, which is a
“legitimate aim” in the “general interest” of
the community. It observes, however, that there must also be a
reasonable relation of proportionality between the means employed and
the aim sought to be realised by any measures applied by the State,
including measures designed to control the use of the individual's
property. That requirement is expressed by the notion of a “fair
balance” that must be struck between the demands of the general
interest of the community and the requirements of the protection of
the individual's fundamental rights (see Edwards v. Malta,
no. 17647/04, § 69, 24 October 2006, with further
references).
- The
Court agrees with the applicant's contention, not disputed by the
Government, that the computer itself was not an object, instrument or
product of any criminal offence (compare Frizen v. Russia,
no. 58254/00, §§ 29-31, 24 March 2005). What was
valuable and instrumental for the investigation was the information
stored on its hard disk. It follows from the judgment of 19 April
2000 that the information was examined by the investigator, printed
out and included in the case file (see paragraph 15 above). In these
circumstances, the Court cannot discern any apparent reason for
continued retention of the central unit. No such reason has been
advanced in the domestic proceedings or before the Court.
Nevertheless, the computer has been retained by the domestic
authorities until the present day, that is, for more than six years.
The Court notes in this connection that the computer was the
applicant's professional instrument which he used for drafting legal
documents and storing his clients' files. The retention of the
computer not only caused the applicant personal inconvenience but
also handicapped his professional activities; this, as noted above,
might have had repercussions on the administration of justice.
- Having
regard to the above considerations, the Court finds that the Russian
authorities failed to strike a “fair balance” between the
demands of the general interest and the requirement of the protection
of the applicant's right to peaceful enjoyment of his possessions.
There has therefore been a violation of Article 1 of Protocol No. 1.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION,
TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained under Article 13 of the Convention that he had
not had an effective remedy in respect of the unlawful restriction on
his property rights under Article 1 of Protocol No. 1. Article 13
provides as follows:
“Everyone whose rights and freedoms as set forth
in [the] 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.”
A. Submissions by the parties
- The
applicant pointed out that the scope of review by the domestic courts
had been confined to the lawfulness of the search. As to his property
complaints, the courts had determined that those issues had not been
amenable to judicial review. In his view, the Constitutional Court's
ruling of 23 March 1999 should have been interpreted as opening the
way for judicial review of all decisions affecting a person's
property rights. He stressed that his civil claim for damages had,
under various pretexts, not been examined for more than four years.
- The
Government submitted that the applicant had been able to challenge
the contested decision before a court which had considered and
dismissed his complaints (on 19 December 2000 in the final instance).
Furthermore, his civil claim for damages against the St Petersburg
City Prosecutor and Ministry of Finance was now pending before the
Oktyabrskiy Court of St Petersburg.
B. The Court's assessment
- The
Court has consistently interpreted Article 13 as requiring a remedy
in domestic law in respect of grievances which can be regarded as
“arguable” in terms of the Convention (see, for example,
Boyle and Rice v. the United Kingdom, judgment of 27
April 1988, Series A no. 131, pp. 23-24, § 54). In the
present case there has been a finding of a violation of Article 1 of
Protocol No. 1 and the complaint under Article 13 must therefore be
considered. It must accordingly be determined whether the Russian
legal system afforded the applicant an “effective”
remedy, allowing the competent “national authority” both
to deal with the complaint and to grant appropriate relief (see
Camenzind, cited above, pp. 2896-97, § 53).
- The
applicant asked for a judicial review of the lawfulness of the search
and seizure conducted at his place of residence and of the decision
on retention of his computer as physical evidence. Whereas the
domestic courts examined the complaint concerning the search and
seizure, they declared inadmissible the complaint about the failure
to return the applicant's computer on the ground that the retention
decision was not amenable to judicial review (see paragraphs 22 et
seq. above). The applicant was told to apply to a higher prosecutor
instead. In this connection the Court reiterates its settled case-law
to the effect that a hierarchical appeal to a higher prosecutor does
not give the person employing it a personal right to the exercise by
the State of its supervisory powers and for that reason does not
constitute an “effective remedy” (see, for example,
Horvat v. Croatia, no. 51585/99, § 47, ECHR
2001 VIII).
- As
regards the pending civil claim for damages to which the Government
referred, the Court notes that a civil court is not competent to
review the lawfulness of decisions made by investigators in criminal
proceedings.
- It
follows that in these circumstances the applicant did not have “an
effective remedy before a national authority” for airing his
complaint arising out of a violation of Article 1 of Protocol No. 1.
There has therefore been a violation of Article 13 of the Convention,
taken together with Article 1 of Protocol No. 1.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
Court points out that under Rule 60 of the Rules of Court any claim
for just satisfaction must be itemised and submitted in writing
together with the relevant supporting documents or vouchers, “failing
which the Chamber may reject the claim in whole or in part”.
- In
a letter of 5 July 2005, after the application had been declared
admissible, the Court invited the applicant to submit claims for just
satisfaction by 7 September 2005. He did not submit any such claim
within the specified time-limit.
- In
these circumstances, the Court makes no award under Article 41.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of Article
8 of the Convention;
- Holds that there has been a violation of Article
1 of Protocol No. 1;
- Holds that there has been a violation of Article
13 of the Convention, taken together with Article 1 of Protocol No.
1;
- Decides not to make an award under Article 41 of
the Convention.
Done in English, and notified in writing on 7 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
