European Court of Human Rights

 

 

SECOND SECTION

CASE OF DURLEŞTEANU v. THE REPUBLIC OF MOLDOVA

(Application no. 25953/12)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

14 December 2021

 

This judgment is final but it may be subject to editorial revision.

In the case of Durleşteanu v. the Republic of Moldova,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Carlo Ranzoni, President,
          Valeriu Griţco,
          Marko Bošnjak, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 25953/12) 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”) on 9 April 2012 by two Moldovan nationals, Mr Victor Durleșteanu and Ms Ala Durleșteanu, born in 1973 and 1973 respectively and living in Durlești (“the applicants”) who were represented by the first applicant;

the decision to give notice of the complaint concerning Article 8 of the Convention to the Moldovan Government (“the Government”), represented by their Agent, Mr O. Rotari, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 23 November 2021,

Delivers the following judgment, which was adopted on that date:

SUBJECT-MATTER OF THE CASE

1.  The case concerns the searches carried out on 19 October 2011 in the applicants’ home and in their office, where they both practice law. No documents were found or seized as a result.

2.  The searches were ordered by an investigating judge on 11 October 2011 in the course of a criminal case concerning the disappearance of documents from the office of a company represented by the first applicant. The search warrants were not subject to appeal. The applicants did not have any procedural standing in that criminal case. On 21 June 2012 the criminal investigation was suspended.

3.  The applicants complained that the searches carried out in their home and professional office failed to comply with Article 8 of the Convention because the court did not provide reasons as to why the missing documents were to be found in their home or office and failed to provide sufficient safeguards to protect the confidentiality of their clients’ files. The way in which the search was carried out was humiliating and traumatising.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

4.  The Government argued that, by omitting to claim compensation under Law no. 1545, the applicant failed to exhaust domestic remedies. The Court has already rejected such an objection (Mancevschi v. Moldova, no. 33066/04, §§ 32-34, 7 October 2008). As the Government did not submit any fresh evidence calling that finding into question, the Court concludes that their objection should be dismissed in the present case too.

5.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

6.  The general principles concerning searches in a lawyer’s home and premises have been summarized in Mancevschi v. Moldova (cited above, §§ 39‑49) and Aleksanyan v. Russia (no. 46468/06, § 214, 22 December 2008 with further references).

7.  It is undisputed that there has been an interference with the applicants’ right to respect for their private life and their home. Even assuming that the interference in question was in accordance with the law, that that law was in line with the requirements listed in Article 8 (see Mancevschi v. Moldova, cited above, § 42) and that the interference pursued the legitimate aim of the prevention of disorder or crime, the Court is not convinced that the measures were necessary in a democratic society.

8.  The search warrants issued by the investigating judge repeated almost entirely the search requests submitted by the prosecutor and did not contain any information about the reasons why it was believed that the search of the applicants’ home and office would enable evidence to be obtained. Moreover, the first applicant informed the investigating authorities during the search that one of the missing documents was publicly available on the internet. The search warrants did not refer to the second applicant, although they concerned her home and professional office too and failed to acknowledge that the first applicant was a lawyer. Accordingly, the search of the applicants’ professional office was carried out without any safeguards to protect the confidentiality of their clients’ files.

9.  In these circumstances, the Court finds that the domestic authorities failed in their duty to give “relevant and sufficient” reasons for issuing the search warrants and that therefore the impugned interference was not necessary in a democratic society. There has, accordingly, been a violation of Article 8 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

10.  The applicants claimed 10,000 euros (EUR) each in respect of non‑pecuniary damage. They did not make any claims in respect of costs and expenses.

11.  The Government argued that the claims were excessive and invited the Court to reject them.

12.  The Court awards the applicants jointly EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

13.  The Court further considers it appropriate that the default interest rate 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,

1.      Declares the complaint concerning Article 8 of the Convention admissible;

2.      Holds that there has been a violation of Article 8 of the Convention;

3.      Holds

(a)  that the respondent State is to pay the applicants, jointly, within three months, EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Moldovan lei at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.      Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 14 December 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

           {signature_p_2}

             Hasan Bakırcı                                                     Carlo Ranzoni
          Deputy Registrar                                                      President