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FOURTH
SECTION
CASE OF
MANCEVSCHI v. MOLDOVA
(Application
no. 33066/04)
JUDGMENT
STRASBOURG
7 October
2008
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 Mancevschi v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ledi
Bianku,
Mihai
Poalelungi,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 16 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33066/04) against the Republic
of Moldova lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Moldovan national, Mr Oleg Mancevschi (“the
applicant”), on 18 June 2004.
- The
applicant was represented by Mr V. Nagacevschi, a lawyer practising
in Chişinău and a member of the non-governmental
organisation Lawyers for Human Rights. The Moldovan Government (“the
Government”) were represented by their Agent, Mr V. Grosu.
- The
applicant alleged, in particular, that a search conducted at his
apartment and office had infringed his rights under Article 8 of the
Convention.
- The
application was allocated to the Fourth Section of the Court. On
21 November 2006 the President of that Section decided to
communicate the application to the Government. Under the provisions
of Article 29 § 3 of the Convention, it was decided to examine
the merits of the application at the same time
as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1962 and lives in Chişinău.
- The facts of the case, as submitted by the parties, may
be summarised as follows.
- In 1992 the applicant founded a company (Rusman) and
was its director until 1998.
- In
July 2001 he became a licensed lawyer. On an unknown date in 2002 he
became Rusman's lawyer.
- On
28 July 2003 S. P., the director of another company, was killed and a
criminal investigation was initiated into the case. On 23 February
2004 the applicant signed a contract to represent B., who was
suspected of the murder of S. P. According to the Government, the
investigator found certain links between the activities of Rusman and
S. P.'s death and decided to hear the applicant as a witness in
respect of the activities of Rusman.
- On
26 May 2004 the applicant was summoned to appear on the same day
before T., an investigator of the Chişinău Police
Inspectorate, in order to testify as a witness in his client's case.
Since he only received the summons fifteen minutes before the time
indicated to appear, he was fifteen minutes late in arriving at the
investigator's office. T. had left by then. On the same date the
applicant sent a telegram to the investigator, informing him of these
events.
- Also on 26 May 2004 T. ordered the search of the
applicant's office. The decision read as follows:
“Officer T. [description of duties],
Having examined the materials of criminal file [no. of
file] initiated under Article 145(2) of the Code of Criminal
Procedure;
Has established that on 28 July 2003 at approximately
19.00 in Chişinău [address] [P. S.] was shot and killed
with an unidentified firearm.
Following a criminal and an operational investigation it
was determined that B. [address], who has been arrested and is
detained at [a detention centre], was connected with the murder of
[P. S.]
Taking into account that evidence in the file and the
material obtained through the operational investigation allow a
well-founded assumption that objects of interests to the operational
investigation and which are material evidence in the criminal case,
can be found at [the applicant's] office in Lex Consulting situated
at [address], on the basis of Article 125 CPP.
Decides
To order a search of [the applicant's] office in Lex
Consulting situated at [address] with the aim of finding and taking
as evidence objects of interest to the operational investigation and
which are material evidence in the criminal case.”
- On
the same date T. issued an identically worded warrant for the search
of the applicant's apartment.
- Following
T.'s order, also on 26 May 2004 a prosecutor asked the Râşcani
District Court to issue a warrant for the search of the applicant's
office since “objects which are of interest to the operational
investigation and which are material evidence in the criminal case,
are at [the applicant's] workplace”. An identically worded
request was made in respect of the applicant's apartment.
- Still on the same day, Judge E.C. from the Râşcani
District Court adopted a decision authorising the search of the
applicant's office. The decision read as follows:
“The court ... has examined in camera the request
of the section prosecutor from the Prosecutor General's Office
concerning the authorisation of a search.
The court established:
In the present request permission is requested to
authorise the search of [the applicant's] office in Lex Consulting
S.R.L. situated at [address] in respect of the criminal file [file
number] initiated in respect of the crime provided for in Article
145(2) of the Criminal Code, concerning the murder of [S. P.] which
took place on 28 July 2003 at approximately 19.00 in Chişinău
at [address] with an unidentified firearm.
The court considers that the request is lawful and well
grounded, and, based on Articles 125, 301 and 306 of the Code of
Criminal Procedure, the court:
Orders
To authorise a search at [the applicant's] office at Lex
Consulting S.R.L. situated at [address].
The decision is final.”
An
identically worded decision authorised a search of the applicant's
apartment.
- On
27 May 2004 the applicant complained to the Râşcani
District Court of unlawful actions by the investigator. In
particular, he relied on Article 90(3) of the Code of Criminal
Procedure (CCP, see paragraph 26 below), which prohibited the hearing
as a witness of a lawyer representing an accused in the same case. He
finally requested the court “not to take into account any
statements he had made because they would have been made under duress
and the investigator had taken advantage of his ill health as he had
been on sick leave at the time, being treated for blood poisoning”.
- On
28 May 2004 T. summoned the applicant again for 3 July 2004. On the
same day he issued an order requiring the applicant to be brought
before him by force because of his unexplained failure to appear as a
witness before the investigating authority on 25 and 26 May 2004.
- On
31 May 2004 the applicant was brought by force before the
investigating authority. On the same day he made statements relating
to his client's case. He mentioned, as in the record of the
interview, that he should not be examined as a witness as he was the
lawyer of an accused in the same case.
- Also
on 31 May 2004 T. decided to remove the applicant as a representative
of his client in the case because:
“... during the criminal investigation it was
established that [the applicant] had been involved in the economic
activities of Rusman Ltd as a result of which there is a need to hear
him as a witness”.
- After
the interrogation, T. informed the applicant of the two decisions
adopted on 26 May 2004 authorising the searches of his home and
office and gave him copies of these decisions. The applicant
complained that these decisions did not include any relevant reasons.
- On the same day the applicant's office was searched in
the presence of the applicant and his lawyer, followed by a search at
his apartment. In the minutes of the search at both places the aim of
the search was noted as “the discovery of a mobile telephone
and documents regarding Rusman Ltd”. A proposal was made to
hand over the mobile telephone and documents regarding Rusman Ltd and
then a search of the Lex Consulting offices took place. Nothing was
discovered or taken from the applicant's office. According to the
Government, the search lasted approximately thirty-five minutes. The
record mentioned the time the search started but not the time it
ended. It also mentioned that a complaint had been made about the
unlawfulness of the search at the applicant's office.
- According to the record of the search of the
applicant's apartment, a mobile telephone was given to the
investigators at their request. It was returned the following day.
According to the parties, his home was searched (for about 20
minutes, as confirmed by the record). The applicant added that the
telephone taken by the investigators belonged to his wife.
- On
8 June 2004 the applicant submitted to the Râşcani
District Court an addendum to his complaint of 27 May 2004. He
claimed that he had not received any summons other than the one
requesting him to appear on 26 May 2004 and that there was no
evidence to the contrary. He also noted that the questions asked on
31 May 2004 concerned issues of which he had knowledge as a result of
his activity as a legal representative in his client's case. He asked
the court for a ruling that the actions of the investigating
authority were unlawful, for cancellation of the orders to bring him
to the prosecutor by force and to remove him as his client's
representative and for a decision to be adopted informing the
prosecuting authority and the Ministry of the Interior of the
unlawful acts committed. He relied, inter alia, on Articles 6
and 8 of the Convention.
- The Râşcani
District Court scheduled the examination of the applicant's complaint
for 10 June 2004. On that day he sought the withdrawal of Judge E. C.
because she had taken the decisions authorising the searches of his
office and apartment. He submitted that the relevant decisions were
unreasoned and did not mention his status as the lawyer of an accused
in the case in respect of whom the search had been ordered, which
suggested that the judge had not even considered the case before
signing the decision. In addition, the decision itself did not give
any time-limits for making the searches, the aims of the searches or
the person(s) authorised to carry them out, contrary to Article 306
CCP. Finally, the judge allegedly took the side of the prosecution,
thus infringing the right to equality of arms. In an addendum, the
applicant mentioned that he was about to lodge a complaint with the
European Court of Human Rights about the searches and emphasised the
superficial manner in which the judge had examined the investigator's
request since she had failed to note the applicant's status as a
legal representative. On the same date, another judge of the Râşcani
District Court dismissed the applicant's request for Judge E.C. to be
withdrawn.
- The
Râşcani District Court examined
the applicant's complaint on 14 June 2004 and rejected it. The
court found that the applicant had been asked questions regarding
Rusman Ltd, where he had been a director until 1998, and not about
anything he could have found out from his client. In addition, he had
been removed as a legal representative in order to make it possible
to question him as a witness. The court found, having analysed all
the materials in the file, that the actions of the investigating
authority, including the orders to bring in the applicant by force
and his removal as his client's representative, had been lawful and
well-founded. The decision was final. No reply was given to the
applicant's complaint about the searches of his office and home.
- According
to the applicant, the investigating authority presented the criminal
file to the court and the court consulted it before adopting its
decision. He and his lawyer were not given access to it. His request
to have access to the file was allegedly rejected.
II. RELEVANT DOMESTIC LAW
- The relevant provisions of the Code of Criminal
Procedure (CCP) read as follows:
“Article 90. The witness.
... (3) The following cannot be heard as
witnesses:
... 2) lawyers, members of bar associations –
for the verification of information of which they have become aware
due to requests for legal assistance or to giving such assistance;
...”
“Article 125. Grounds for ordering a search.
(1) The investigating authority has the power
to search if the evidence in the file or operational investigative
materials give reason to believe that objects or documents and
valuables obtained as a result of a crime or other objects and
documents which may be important for the criminal case are in a
certain room or another place.
... (3) Searches shall be carried out on the
basis of a reasoned order of the investigating authority and only
with the authorisation of the investigating judge. ...”
“Article 126. Grounds for seizing objects and
documents.
(1) The investigating authority has the power
to seize objects or documents which are important for the criminal
case if the evidence in the file or the operational investigative
materials indicate precisely the place and person possessing them.
...”
“Article 128. The procedure for carrying out
searches or seizing objects of documents.
...(4) In seizing objects and documents,
after presenting the order, the representative of the investigating
authority shall first request the objects or documents to be seized
to be handed over and, in case of a refusal, shall proceed to their
seizure by force. If the objects or documents to be seized are not in
the place indicated in the order, the person conducting the search
has the power to search for them, giving reasons. ...
(6) Objects and documents discovered during
the search or the seizure, the circulation of which is prohibited by
law, shall be seized regardless of their relevance to the criminal
case.”
“Article 301. Criminal investigation acts carried
out with the authorisation of the investigating judge.
(1) Criminal investigations involving
limitations to the inviolability of the home .. shall be authorised
by the investigating judge. ...”
“Article 305. Manner of dealing with requests for
criminal investigations, operational investigations or the
application of preventive measures.
1. A request for criminal investigations,
operational investigations or the application of preventive measures
shall be examined by the investigating judge in camera, with the
participation of the prosecutor and, if applicable, the agency
responsible for carrying out the operational investigation.
... 8. The decision adopted by the
investigating judge under the provisions of the present Article is
final, except for the cases provided for in the present Code.”
“Article 306. Court decisions concerning criminal
investigations, operational investigations or the application of
preventive measures.
A court decision regarding investigative actions,
operational measures or preventive measures shall include: ... the
authority carrying out the operational investigation, investigative
or preventive measures, the aim of taking these actions or measures
and the person to whom they refer, as well as the authorisation or
the refusal to authorise the measures, the period for which the
action is authorised, the authority empowered to enforce the
decision, ...”
“Article 313. Complaints about unlawful acts and
decisions by the investigating authority and by the authority
responsible for carrying out the operational investigation.
1. A suspect or accused or his or her lawyer,
a victim and other participants in criminal proceedings whose rights
and lawful interests have been infringed by unlawful acts and
decisions by the investigating authority and by the authority
responsible for carrying out operational investigations can lodge a
complaint with the investigating judge.
2. Persons mentioned under paragraph 1 above
have the right to challenge before the investigating judge:
... (3) other actions which affect the rights
and constitutional freedoms of the person.”
- The relevant provisions of Law no. 1545 on
compensation for damage caused by illegal acts by criminal
investigation bodies, prosecution authorities and courts read as
follows:
“Article 1
(1) In accordance with the present law,
individuals and legal entities are entitled to compensation for the
pecuniary and non-pecuniary damage caused as a result of:
... b) illegal search carried out during the
investigation phase or during trial, confiscation, levy of a
distraint upon property, illegal dismissal from employment, as well
as other procedural acts that limit the person's rights;
... d) carrying out of unlawful investigative
measures;
e) illegal seizure of accounting documents,
other documents, money or stamps as well as blocking of banking
accounts.
(2) The damage caused shall be fully
compensated, irrespective of the degree of fault of the criminal
investigation organs, prosecution and courts.
Article 4
A person shall be entitled to compensation in accordance
with the present law when one of the following conditions is met:
a) pronouncement of an acquittal judgment;
b) dropping of charges or discontinuation of
investigation on the ground of rehabilitation;
c) adoption of a decision by which an
administrative arrest is cancelled on the grounds of rehabilitation;
d) adoption by the European Court of Human
Rights or by the Committee of Ministers of the Council of Europe of a
decision in respect of damages or in respect of a friendly settlement
agreement between the victim and the representative of the Government
of the Republic of Moldova before the European Court of Human Rights.
Any friendly settlement agreement shall be approved by the Government
of the Republic of Moldova; ...”
THE LAW
- The
applicant complained under Article 6 of the Convention that his right
to equality of arms had been infringed as a result of his inability
to consult the criminal file submitted by the prosecutor to the
Râşcani District Court before
its decision of 14 June 2004. He also complained, under the same
Article, of absence of relevant and sufficient reasons for the
various decisions in his case. The relevant part of Article 6 reads
as follows:
“1. In the determination of his civil
rights and obligations or of any criminal charge against him,
everyone is entitled to a fair ... hearing ... by an independent and
impartial tribunal established by law.”
- The
applicant further complained under Article 8 of the Convention about
the searches of his office and apartment and about being brought by
force before the investigating authority in order to be heard as a
witness. Article 8 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.”
I. ADMISSIBILITY
- The Government submitted that the applicant had not
exhausted all the domestic remedies available to him. In particular
he could have, but did not, make use of the provisions of Article 313
of the Code of Criminal Procedure (hereinafter “the CCP”,
see paragraph 26 above), which allowed him to challenge in court the
investigating authority's searches at his office and apartment. In
the Convention proceedings, the applicant incorrectly relied on
Article 305(8) CCP since it applied to a different type of procedure
involving the authorisation by the investigation judge and not the
actions of the investigating authority. In addition, he could claim
damages for unlawful acts by the investigating authority on the basis
of Law no. 1545 (see paragraph 27 above).
- The
applicant disagreed. He pointed to the absence of any domestic
decision finding the searches unlawful and submitted that,
accordingly, the provisions of Law no. 1545 were not applicable to
his case. Under Article 305(8) of the CCP decisions of the
investigating judge regarding, inter alia, searches, were
final and not subject to any form of appeal.
- The
Court notes that it has already dismissed similar objections of the
respondent Government based on Law no. 1545, finding that the law is
applicable only to persons who have been acquitted or in respect of
whom a criminal investigation has been discontinued (see Sarban v.
Moldova, no. 3456/05, § 59, 4 October 2005). Since this
is not the case with the applicant, the Court is not satisfied that
the remedy under Law no. 1545 would have been effective in
respect of the applicant's complaints.
- The
Court does not consider it necessary to resolve the difference
between the parties as to whether the investigating judge's decision
authorising the searches constituted a separate procedure from the
acts of ordering and/or carrying out the searches by the
investigating authority. It notes that, even where a search is
ordered by an investigator, prior authorisation by an investigating
judge is mandatory under Article 125(3) CPP (see paragraph 26 above).
In any event, the complaint against the unlawful actions of the
investigating authority to which the Government refer (Article 313
CCP, see paragraphs 26 and 30 above) would have to be submitted,
under Article 313(1) CCP, to the investigating judge. The Court has
doubts regarding the prospects of success of a complaint about the
unlawfulness of an action which is lodged with the investigating
judge who has just authorised it and found it both lawful and
well-founded, expressly noting that her decision was final (see
paragraph 14 above).
- In
view of the above, the Court concludes that the application cannot be
declared inadmissible for non-exhaustion of domestic remedies.
Accordingly the Government's objection must be dismissed.
- In
his initial application, the applicant also submitted two complaints
under Article 6 of the Convention, as well as an additional complaint
under Article 8 regarding his having been brought by force before the
investigator. However, in his observations on admissibility and
merits he asked the Court not to proceed with the examination of
these complaints. The Court finds no reason to examine them.
- In
so far as the applicant's complaint under Article 8 of the Convention
is concerned, the Court considers that it raises questions of fact
and law which are sufficiently serious that its determination should
depend on an examination of the merits, and that no grounds for
declaring it inadmissible have been established. The Court therefore
declares it admissible. In accordance with its decision to apply
Article 29 § 3 of the Convention (see paragraph 4 above), the
Court will immediately consider the merits of this complaint.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
A. The arguments of the parties
- The
applicant submitted that the searches at his office and apartment
constituted an interference with his rights guaranteed under Article
8 of the Convention. He considered that, while pursuing a legitimate
aim under paragraph 2 of that Article, the interference was neither
“in accordance with the law”, nor “necessary in a
democratic society”. In particular, he referred to the lack of
detail in the court's decision authorising the searches, which failed
to identify the object(s) to be searched, the time-frame for the
searches or the person responsible for carrying it out, despite
express legal requirements to give such detail. Moreover, the
searches conducted on the basis of vaguely worded search warrants and
without any special measures being taken to safeguard the
confidentiality of files in a lawyer's office, necessarily resulted
in a disproportionate interference with the applicant's rights. In
particular, he referred to the opening, by the investigating
authority, of his safe and of all his files at his office, which
undermined his lawyer-client privilege.
- The
Government conceded that there had been an interference with the
applicant's rights guaranteed by Article 8 of the Convention, but
considered that the interference was in accordance with the law,
pursued a legitimate aim and was “necessary in a democratic
society”. A number of Articles in the CCP clearly described the
possibility of conducting searches and the manner of authorising and
carrying them out. The searches were necessary in order to help an
ongoing criminal investigation and were based on information in the
file allowing a reasonable assumption that objects or documents
important for the investigation could be found at the applicant's
office or apartment. The applicant and his lawyer had made no
objections to the manner in which the search had been conducted,
noting only that the search had been unlawful. The search was brief
and nothing was taken from the office, with only one mobile telephone
taken from the apartment.
B. The Court's assessment
1. Whether there was an interference
- The Court observes that the search and seizure in the
present case concerned the applicant's apartment and office, in which
he kept his clients' case files. The Court reiterates that the search
of a lawyer's office has been regarded as interfering with “private
life” and “correspondence” and, potentially, home,
in the wider sense implied by the French text which uses the term
“domicile” (see Niemietz v. Germany, 16
December 1992, §§ 29 33, Series A no. 251 B,
and Tamosius v. the United Kingdom (dec.), no. 62002/00, ECHR
2002 VIII; see also Sallinen and Others v. Finland, no.
50882/99, § 71, 27 September 2005, which confirms that the
search of a lawyer's business premises also interfered with his right
to respect for his “home”, and Wieser and Bicos
Beteiligungen GmbH v. Austria, no. 74336/01, § 43, ECHR
2007 ...).
The
Court agrees with the parties in the present case that the search of
the applicant's office and apartment amounted to an interference with
his rights guaranteed under Article 8 of the Convention.
2. 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.
a. 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 warrant had not given
sufficient detail, contrary to legal requirements.
- The
Court observes that a number of provisions of the CCP describe the
various aspects of obtaining and executing search warrants, such as
the obligation for the investigating judge to give reasons when
authorising a search, and to include information such as the purpose
of the search, the person authorised to conduct it or the time-frame
for the search. The obligation for the investigating judge to give
such detailed reasons constitutes an important safeguard against
abuse. The Court is satisfied that the legal framework concerning the
authorisation of searches is, on the face of it, in line with Article
8 requirements.
- The
Court notes that the applicant's objections relate primarily to the
manner in which this legal framework has been applied in the present
case. The Court considers that a failure to observe the legal
requirements may lead to a finding that the interference with the
applicant's rights was not “in accordance with the law”
within the meaning of Article 8. However, in the present case it
finds that the issue of practical compliance with the law is closely
related to whether the interference was “necessary in a
democratic society” given, in particular, the special relevance
of the principle of lawyer-client confidentiality to the facts under
examination. It will therefore examine this issue below.
b. Whether the interference pursued a
legitimate aim
- The
parties agreed that the interference had pursued the legitimate aim
of the prevention of disorder or crime. The Court agrees with these
submissions.
c. Whether the interference was “necessary
in a democratic society”
45. 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 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 particular 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 warrant was 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 v. Germany, no. 41604/98, §
45, ECHR 2005 IV; Chappell v. the United Kingdom, 30
March 1989, § 60, Series A no. 152 A; Camenzind v.
Switzerland, 16 December 1997, § 46, Reports of Judgments
and Decisions 1997 VIII; Funke v. France, 25
February 1993, § 57, Series A no. 256 A; Niemietz,
cited above, § 37; and Smirnov v. Russia, no. 71362/01,
§ 44, 7 June 2007, ECHR 2007 ...).
- With
regard to the safeguards against abuse set out in Moldovan
legislation, the Court observes that the search of the applicant's
office and apartment was authorised by an investigating judge. The
investigator's power to carry out a search was therefore confined
only to actions authorised by an independent judicial officer, a
procedure which was followed in the present case.
- The
Court notes that the search warrant issued by the investigating
judge, repeating as it did almost entirely the order given by the
investigator, (see paragraphs 11 and 14 above), did not provide any
detail as to what was to be searched for. Rather, the warrant was
formulated in extremely broad terms, simply authorising “a
search at [the applicant's] office at “Lex Consulting S.R.L.
situated at [address].”
- The
Court is struck by this broad formulation, which gave unfettered
discretion to the investigator to search for anything he wanted in
both the applicant's apartment and the law office. The order did not
contain any information about the reasons why it was believed that
the search of the applicant's apartment or office would enable
evidence of any offence to be obtained (compare Niemietz,
cited above, § 37; Ernst and Others v. Belgium,
no. 33400/96, § 116, 15 July 2003; and Smirnov, cited
above, § 47). Only after the police had entered the
applicant's apartment was he invited to hand over “a mobile
telephone and documents regarding Rusman Ltd” (see paragraph 20
above).
- The
Court also observes that the applicant himself was not charged with,
or suspected of, any criminal offence or unlawful activities. On the
other hand, his office contained case files of his clients. Having
regard to the fact that the search was conducted at the applicant's
law office, with the implications that such a search could have for
lawyer-client confidentiality, the Court would have expected the
investigating judge to have given compelling and detailed reasons for
authorising this course of action and for putting in place particular
measures to safeguard the privileged materials protected by
professional secrecy. Moreover, before being removed from the case by
the investigator, the applicant had represented a person in the
criminal case in connection with which the search had been ordered.
The search could thus have led to the finding of items or documents
obtained by the applicant as the accused's representative, with
obvious repercussions for that accused's rights guaranteed under
Article 6 of the Convention. Therefore, an even higher degree of
caution was required before a search could be authorised in the
applicant's home and office. However, no analysis of any of these
considerations was made by the investigating judge in her decisions
of 26 May 2004.
- In
these circumstances, in particular in view of the broad formulation
of the search warrant and the absence of any special safeguard to
protect lawyer-client confidentiality, the Court finds that the
domestic authorities failed in their duty to give “relevant and
sufficient” reasons for issuing the search warrants. There has,
accordingly, been a violation of Article 8 of the Convention.
- In
view of its finding that the searches of the applicant's apartment
and office were incompatible with Convention standards, the Court
does not consider it necessary to verify whether the manner in which
the searches were actually conducted satisfied Article 8
requirements.
III. 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.”
A. Non-pecuniary damage
- The
applicant asked for 5,000 euros (EUR) in compensation for the
non-pecuniary damage inflicted on him. He referred to the fact that
both his office and apartment were searched, that a mobile phone
belonging to his wife and containing very personal information had
been seized and no apologies made upon returning it, and that he felt
affected by the search of the private areas of his apartment.
- The
Government considered that no damage had been caused to the
applicant, who had not submitted any evidence in this respect. They
considered that a finding of a violation of Article 8 would
constitute, in any event, sufficient just satisfaction.
- The
Court considers that the applicant must have been caused stress and
anxiety as a result of searches conducted at his office and
apartment, considering that he was not suspected of any unlawful
action. It is also apparent that the search at his office was capable
of affecting the relationships with his clients and could generally
affect his image as a professional. In view of the above, the Court
considers that an award of compensation for non-pecuniary damage is
justified in this case. Deciding on an equitable basis, the Court
awards the applicant EUR 2,500 under this head.
B. Costs and expenses
- The
applicant also claimed EUR 1,990 for legal costs and EUR 35 for
translation expenses and submitted a contract with his lawyer, an
itemised list of hours worked on the case and as well as receipts
confirming that the above sums had been paid in full. The hourly fee
paid was in conformity with the recommendation adopted by the
Moldovan Bar Association on 29 December 2005 concerning fees for
legal representation in cases before international tribunals.
- The
Government submitted that the decision of the Moldovan Bar
Association had only a recommendation value and was not mandatory.
Moreover, the amount paid by the applicant was exaggerated in
comparison with the average monthly salary in Moldova. The number of
hours worked on the case (fourteen hours) was also exaggerated, given
the applicant's withdrawal of some of the complaints.
- In
the present case, regard being had to the itemised list submitted and
the complexity of the issues raised by the Article 8 complaint, the
Court awards the applicant EUR 1,535 for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,500 (two thousand
five hundred euros) in respect of non-pecuniary damage and EUR 1,535
(one thousand five hundred and thirty five euros) in respect of costs
and expenses, to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement,
plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 7 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
