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FIRST
SECTION
CASE OF MASTEPAN v. RUSSIA
(Application
no. 3708/03)
JUDGMENT
STRASBOURG
14
January 2010
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 Mastepan v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 15 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3708/03) 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 Yevgeniy Sergeyevich
Mastepan (“the applicant”), on 17 December 2002.
- The
applicant, who had been granted legal aid, was represented by
Mr
Y. Turushchukov, a lawyer practising in Barnaul. The Russian
Government (“the Government”) were represented by Mr P.
Laptev and subsequently by Ms V. Milinchuk, former Representatives of
the Russian Federation at the European Court of Human Rights.
- Relying
on Articles 5, 6, 8 and 13 of the Convention and Article 1 of
Protocol No. 1, the applicant complained that he had been incited to
commit a crime, that the police squad and the investigator had
unlawfully entered his flat, carried out an unauthorised search,
removed all valuable property and detained him at the police station.
- On
11 January 2007 the Court declared the application partly
inadmissible and decided to communicate the complaint under Article 8
concerning the entry into, and inspection of, the applicant’s
home by the investigating officer to the Government. Under the
provisions of Article 29 § 3 of the Convention, it 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 1975 and lives in Rubtsovsk, a town in the
Altay Region.
- On
an unspecified date the economic crimes bureau of the Barabinsk Town
Police (Отдел по борьбе
с экономическими
преступлениями
Барабинского
городского
ОВД по Новосибирской
области – “the
economic crimes bureau”) obtained information concerning
the circulation of counterfeit money in town. Based on the above
information and pursuant to Section 10 of the Operational-Search
Activities Act the economic crimes bureau instituted operational
proceedings (дело оперативного
учета).
- In
the course of the operational proceedings at issue the economic
crimes bureau discovered incidents of forgery of official documents.
- Following
the approval of the report on the operational-search activities
conducted within the framework of the operational proceedings at
issue, on 9 February 2002 in accordance with Section 8 of the
Operational-Search Activities Act the Deputy Head of the Barabinsk
Town Police decided to carry out a test purchase in the applicant’s
flat. The reason for that decision had been the information that the
applicant was involved in unlawful activity consisting in forgery of
banknotes and official documents entitling its holders to certain
benefits or exonerating them of duties and obligations. On the same
day criminal proceedings were instituted against the applicant on
suspicion of counterfeiting.
- On
10 February 2002 two plain-clothes police officers, K. and B., came
to the applicant’s flat to carry out the test purchase. The
officers said that they were a husband and wife wishing to obtain a
copy of a high-school graduation certificate. The applicant invited
the visitors to come in, scanned the documents handed over by the
“husband”, then, at the “clients’”
request, changed the name of the holder and certain grades. Then he
made colour printouts and asked for 500 Russian roubles by way of
payment.
- According
to the applicant, when the “clients” were on their way
out, a police squad and an investigator who had been waiting outside
in the meantime burst into the applicant’s flat.
- According
to the Government, after the test purchase had been completed the
applicant saw the “clients” to the door, opened it, and
the police officers who had been waiting outside in the meantime
entered the flat. They showed their identification documents and
informed the applicant of the purpose of their visit. After that the
forgery of a document was reported to an investigator of the
investigative department of the Barabinsk Town Police. When the
investigator arrived to the applicant’s flat, the applicant’s
wife opened the door. Upon her permission the investigator entered
the flat. The applicant did not object to the investigator’s
presence. After the attesting witnesses had been invited the
investigator explained to the applicant and those present that there
were reasons to believe that the applicant had committed forgery of
an official document and expressed his will to conduct an
investigative action – inspection of the crime scene. The
applicant and his wife gave their consent.
- The
investigator inspected the applicant’s flat as a crime scene
and seized material evidence. In accordance with Article 182 of the
RSFSR Code of Criminal Procedure he drew up a record of the
inspection. The record attests to the fact that on 10 February 2002
from 6 p.m. to 9 p.m. in accordance with Articles 178-179 of the Code
and in the presence of two attesting witnesses, the applicant and his
wife, the investigator carried out the inspection of the applicant’s
flat. The record set out in detail the descriptions of the flat and
the seized evidence (computer gear).
- Thereafter
the applicant was taken to the police station where he was detained
until 2 a.m. on 11 February 2002.
- On
15 February 2002 the investigator opened another criminal case
against the applicant and charged him with forgery of official
documents.
- The
applicant brought a complaint against the police squad and the
investigator, alleging that they had conducted an unlawful search of
his premises, thus violating his right to respect for his home, and
that they had frisked him and seized his belongings. In particular,
the applicant complained that when police officers K. and B. were on
their way out an armed squad burst into his flat, shouting and
threatening. He was thrown to the floor his hands tightly tied behind
his back and dealt several blows to his side and the lower part of
his back. The squad frisked him and handcuffed him. Afterwards the
applicant was informed that the armed persons were police. The
attesting witnesses were called, and what the applicant believed to
have been a search began, without any prior approval by the
prosecutor. The “search” lasted about three hours. From
the conversation of the police officers the applicant understood that
they were searching for drugs and arms. After the “search”
was over some of the applicant’s belongings were put in boxes
and seized. Later the applicant was informed with the record of the
investigative action in question, from which he learned that it had
been an inspection of the crime scene.
- On
3 July 2002 the Barabinskiy District Court of the Novosibirsk Region
rejected the applicant’s complaint as unsubstantiated. The
court found as follows:
“... On 10 February 2002 the investigator [name]
arrived at [the applicant’s address] in connection with
information about the crime, where he conducted, with attesting
witnesses, the inspection of the scene of the crime. The
investigative action in question was registered in the record of
inspection of the crime scene ... The above circumstance is confirmed
by the record dated 10 February 2002; a statement by [the head of the
police squad] in which he confirmed that ... following a signal from
[police officer K.] the police squad arrested [the applicant]. [The
investigator] arrived ten to fifteen minutes later and inspected the
scene of the crime. [The above circumstance is further confirmed] by:
statement of [police officer K.] in which he confirmed that after the
test purchase was completed he informed the police squad accordingly
through a radio transmitter, following which he came to the door,
opened it, the police squad entered the flat and arrested [the
applicant]; then [the investigator] was called and conducted the
inspection of the scene of the crime; a statement by [a member of the
police squad] who confirmed that on 10 February 2002 a test purchase
was carried out; he and [two other members of the squad] were waiting
for a signal from [police officer K.] to arrest [the applicant].
After the signal was received they entered the flat, then called the
investigator, who entered the flat and conducted the inspection of
the scene of the crime five minutes later; statements of [two
attesting witness] who assisted at the inspection of [the
applicant’s] flat.
On the basis of the above, taking into account that [the
investigator] arrived at [the applicant’s address] at the scene
of the crime, the actions of [the investigator] do not indicate that
there was an unlawful entry to a dwelling.
The RSFSR Code of Criminal Procedure did not oblige the
investigator to hand over the record of the inspection to [the
applicant].
In accordance with Articles 178 and 179 of the RSFSR
Code of Criminal Procedure during the inspection [the investigator]
had the right to seize the uncovered traces of crime and other
physical evidence. At that [the applicant’s] participation was
not obligatory.
It has not been established that [the investigator]
body-searched [the applicant].
...”
As
regards the applicant’s allegations in so far as they concerned
the actions of the police squad, the court indicated that the
applicant had failed to follow the procedure established by law for
challenging police actions (namely, the Police Act and the Law on
complaints about actions and decisions impinging upon the rights and
freedoms of citizens) and refused to examine the relevant part of the
complaint on the merits.
- On
11 September 2002 the Novosibirsk Regional Court upheld the decision
of 3 July 2002 on appeal.
- On
23 August 2007 the Barabinskiy District Court of the Novosibirsk
Region convicted the applicant. It is unclear whether the applicant
appealed against the judgment.
II. RELEVANT DOMESTIC LAW
- The Constitution of the Russian Federation
establishes that the home is inviolable. No one shall enter a
dwelling against the will of those living there, unless otherwise
established by a federal law or in accordance with a court order
(Article 25).
- The Constitution further provides that everyone shall
be guaranteed judicial protection of his rights and freedoms.
Decisions and actions (or inaction) of bodies of state authority and
local self-government, public associations and officials may be
appealed against in court (Article 46).
- The RSFSR Code of Criminal Procedure (Law
of 27 October 1960, in force until 1 July 2002) replicated the
constitutional principle that no one should penetrate into a home
against the will of those living there without legal grounds. Search,
seizure and inspection of residential premises could be carried out
only on the grounds, and in accordance with the procedure, provided
by the Code (Article 12).
- The Code provided specifically that an investigator
could carry out an inspection of a crime scene, location, premises,
physical objects or documents in order to detect traces of a crime or
other physical evidence, to clarify the scene of the crime and other
relevant circumstances. In urgent cases the inspection could be
carried out before opening a criminal case. In such cases, the case
was to be opened immediately after the inspection of the crime scene
(Article 178).
- The inspection of the crime scene had to be carried
out in the presence of attesting witnesses. The investigator could
also solicit the participation of an accused, a suspect, a victim, a
witness and an expert. When carrying out the inspection the
investigator could take measurements, photos, use video recording,
draw plans and schemes, and make moulds and take impressions of
footprints. If necessary, the investigator could seize the evidence
discovered (Article 179 of the Code).
- A record of the inspection had to be drawn up by the
investigator and signed by all persons who took part in the
investigative measure (Articles 141 and 182 of the Code).
- The
Code of Criminal Procedure of the Russian Federation
(Law no. 174-FZ of 18 December 2001, in force as from 1 July
2002) provides for judicial review of decisions of investigators that
might infringe the constitutional rights of participants in the
proceedings or prevent a person’s access to court (Article
125).
- The Operational-Search
Activities Act (Law no. 144-FZ of 12 August 1995) lists a
number of techniques that may be used by law-enforcement or security
authorities for the purposes of, inter alia, investigating and
preventing offences (section 6). In particular, the police may carry
out a “test purchase” (проверочная
закупка) where, inter
alia, a criminal case has been opened or information concerning
the preparation or commission of an offence has become known to the
police and the available data are insufficient to bring criminal
proceedings (section 7). The taking of operational-search measures
which interfere with individuals’ constitutional rights to
respect for their correspondence, telephone communications and home
is allowed if authorised, as a general rule, by a court (section 8).
The “test purchase” of goods, the free sale of which is
prohibited, and certain undercover operations by agents or persons
assisting them, are carried out on the basis of a decision sanctioned
by the head of an agency engaged in operational-search activities
(section 8). The agencies charged with operational-search activities
may create and use information systems and institute operational
proceedings. The operational proceedings are instituted on the
grounds listed in section 7 of the Act for the purposes of collection
and systematisation of information, verification and evaluation of
the results of the operational-search activities, and taking the
relevant decisions by the agencies charged with operational-search
activities. The institution of operational proceedings may not serve
as a ground for restriction of constitutional rights and freedoms and
lawful interests of an individual and a citizen (section 10). Results
of operational-search activities can serve as a basis for bringing
criminal proceedings and can be used as evidence in accordance with
the legislation on criminal procedure (section 11).
- The
Police Act (Law no. 1026-I of 18 April 1991) provides that the
police may enter the dwelling against the will of those living there
if there is a reason to believe that a crime has been committed there
(section 11). Actions or inaction on the part of a police officer can
be appealed against to a higher police official, a prosecutor or a
court (section 39).
- The
Law on complaints about actions and decisions impinging upon
the rights and freedoms of citizens (Law no. 4866-I of 27 April
1993) provides that a court of general jurisdiction may hear
complaints about actions or decisions of State and public officials
which infringe citizens’ rights or freedoms or prevent citizens
from exercising their rights and freedoms. It is incumbent on the
officials concerned to demonstrate the lawfulness of their actions or
decisions (section 2).
THE LAW
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The applicant complained that the investigator had
unlawfully entered and searched his flat and thereby breached his
right to respect for his home. He relied on 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. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government accepted that the exercise of the right to enter the
applicant’s home by the investigating officer had amounted to
an interference with the applicant’s right to respect for his
home within the meaning of Article 8 of the Convention. They
considered however that the interference had been justified under
Article 8 § 2 of the Convention: the investigator had acted in
accordance with Articles 178 and 179 of the RSFSR Code of Criminal
Procedure, which laid down the scope and manner of exercise of the
power conferred on the investigator to inspect the scene of the
crime; that his actions pursued the legitimate aim of investigating
the incident of forgery of an official document; and that they were
necessary in a democratic society.
- The
applicant maintained his complaint.
- The
Court observes that upon receipt of information as to the applicant’s
involvement, inter alia, in forgery of official documents, the
deputy head of the town police decided to carry out a test purchase
at the applicant’s flat in order to verify the information at
hand. When the results of the test purchase confirmed the suspicion,
the police squad was notified accordingly and entered the applicant’s
home to arrest the applicant. They subsequently informed the
investigating officer, who arrived at the scene to secure the traces
of the crime and other physical evidence and to determine other
relevant circumstances. The investigating officer acted without a
judicial warrant and prior to institution of the criminal proceedings
against the applicant on the charges of forgery. The Court’s
analyses will be aimed at the examination of the lawfulness of the
entry into, and inspection of, the applicant’s home by the
investigating officer.
- The
Court notes that the parties’ accounts of events as to whether
the applicant had voluntarily consented to the investigator’s
entry into his home diverge significantly. The Court will therefore
depart from the assumption that the investigating officer entered the
applicant’s flat against the latter’s will.
- The
fact of the interference with the applicant’s right to respect
for his home as such was undisputed by the parties and the Court sees
no reason to hold otherwise. Thus, the Court has next to determine
whether the interference in question 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.
- The
Court reiterates that an interference cannot be regarded as “in
accordance with the law” unless, first of all, it has some
basis in domestic law. In accordance with the case-law of the Court,
in relation to paragraph 2 of Article 8 of the Convention, the term
“law” is to be understood in its “substantive”
sense, not its “formal” one. In a sphere covered by the
written law, the “law” is the enactment in force as the
competent courts have interpreted it (see Société
Colas Est and Others v. France, no. 37971/97, § 43,
ECHR 2002 III).
- 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. The RSFSR Code of
Criminal Procedure – which had the status of federal law in the
Russian legal system – provided that in urgent cases an
investigator could inspect the crime scene prior to institution of
criminal proceedings; the Code did not require an investigator to
obtain a judicial warrant (see paragraphs 19 and 22 above). The Court
therefore concludes that the interference was “in accordance
with the law”.
- The
Court further observes that the purpose of the interference with the
applicant’s right to respect for his home was to examine the
scene of the crime and to secure the traces of the crime and other
physical evidence that might be instrumental for the criminal
investigation into the forgery of official documents. The
interference was manifestly in the interests of “the prevention
of crime”. It remains to be determined whether the interference
was “necessary in a democratic society”.
- 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.
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 Société Colas
Est and Others, cited above, § 47, and Smirnov v. Russia,
no. 71362/01, § 43, 7 June 2007, with further references).
- The
Court considers that although the scale of the inspection that was
conducted at the applicant’s home with the view of securing the
traces of the crime and other physical evidence justified the
impugned interference with the applicant’s right to respect for
his home, the relevant legislation and practice should nevertheless
have afforded adequate and effective safeguards against abuse (see
Société Colas Est and Others, cited above,
§ 48).
- The Court must therefore verify whether in the present
case the restrictions and conditions provided for in domestic law
were appropriate.
- In
this respect the Court observes that the domestic law in force at the
material time permitted an investigator to penetrate into a home
against the will of those living there for the purpose of carrying
out an inspection of a crime scene. The domestic law defined the
scope of the inspection as “finding and securing the traces of
the crime and other physical evidence, clarifying the crime scene and
other relevant circumstances”. The inspection of a crime scene
was supplemented by a power of seizure and did not require prior
judicial approval. The criminal proceedings could be opened either
before the inspection or shortly afterwards (see paragraphs 21-22
above). The domestic law further provided that the inspection was to
be conducted in the presence of attesting witnesses. Whether it was
necessary for an accused, a suspect, a victim, a witness or an expert
to take part was left to the discretion of the investigator. A record
of the inspection had to be drawn up (see paragraphs 23-24 above). A
person could ex post facto challenge the lawfulness of the
investigator’s actions before a court (see paragraph 25 above).
The Court is satisfied that the above restrictions and conditions of
the domestic law were sufficient to exclude arbitrary intrusions into
people’s homes.
- Turning
to the circumstances of the present case the Court observes that the
inspection of the applicant’s home implied a certain urgency
and for that reason was carried out prior to institution of the
criminal proceedings against the applicant. The Court further
observes that the investigator did not overstep the scope of the
inspection as defined in the domestic law. The inspection was
conducted in the presence of two attesting witnesses. The record of
the inspection was drawn up thereafter. Shortly afterwards, within a
matter of a few days, criminal proceedings were instituted against
the applicant on suspicion of forgery of official documents. The
applicant used his right to challenge the lawfulness of the applied
investigative measure.
- Regard
being had to the above, the Court considers that the interference
with the applicant’s right to respect for his home had been
proportionate to the legitimate aim pursued.
- There
has therefore been no violation of Article 8 of the Convention in the
present case.
FOR THESE REASONS, THE COURT
- Declares unanimously the complaint concerning
the entry into, and inspection of, the applicant’s flat by the
investigation officer admissible;
- Holds by five votes to two that there has been
no violation of Article 8 of the Convention.
Done in English, and notified in writing on 14 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judges
Rozakis and Spielmann is annexed to this judgment.
C.L.R.
S.N.
DISSENTING OPINION OF JUDGES ROZAKIS AND SPIELMANN
- We
are unable to share the majority view that there has been no
violation of Article 8 of the Convention.
- We
would like to observe that after the “test purchase operation”,
at the moment when the applicant saw the “clients” to the
door, police officers who had been waiting outside entered the flat.
They were followed by an investigator. The exact circumstances of the
entry into the flat are disputed. According to the applicant, the
police squad and the investigator burst into the flat, whereas
according to the Government, the investigator was granted permission
to enter the flat by the applicant, who did not object to the
investigator’s presence and the inspection of the crime scene.
- The
majority rightly depart from the assumption that the investigating
officer entered the applicant’s flat against the latter’s
will (see paragraph 35 of the judgment).
- In
paragraph 41 of the judgment, the Court rightly emphasises that the
relevant legislation and practice should nevertheless have afforded
adequate and effective safeguards against abuse (see Société
Colas Est and Others v. France, no. 37971/97, § 48,
ECHR 2002 III).
- However,
that was not the case in this instance. Indeed, in our view, the
whole operation was inconsistent with Article 8 of the Convention
because of the lack of sufficient safeguards. The conditions for
instituting a search and seizure, as well as the rules governing such
a significant intrusion into the rights guaranteed under Article 8 of
the Convention, appear too lax and full of loopholes for the
interferences with the applicant’s rights to have been strictly
proportionate to the legitimate aim pursued. The investigating
officer acted without a judicial warrant and prior to the institution
of the criminal proceedings against the applicant for forgery. In
addition, the domestic legislation left it to the discretion of the
investigator to determine whether it was necessary for an accused, a
suspect, a victim, a witness or an expert to take part (see paragraph
43 of the judgment).
- In
contrast with the majority view, we are therefore of the opinion that
the conditions laid down in the domestic law were not sufficient to
exclude arbitrary, and hence disproportionate, intrusions into
people’s homes. In addition, in the present case, the lack of
procedural safeguards (see paragraph 22 of the judgment), on account
of the alleged urgency of the matter, made the intrusion a
disproportionate interference under Article 8.
- Consequently,
we are of the opinion that the entry into, and inspection of, the
applicant’s home by the investigating officer did not comply
with Article 8 of the Convention.
