FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 71362/01
by Mikhail SMIRNOV
against Russia
The European Court of Human Rights (First Section), sitting on 30 June 2005 as a Chamber composed of:
MrC.L. Rozakis, President,
MrsS. Botoucharova,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev,
MrD. Spielmann,
MrS.E. Jebens, judges,
andMrS. Quesada, Deputy Section Registrar,
Having regard to the above application lodged on 27 November 2000,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Mikhail Vladimirovich Smirnov, is a Russian national who 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). The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Search at the applicant's place of residence
On 20 January 1999 the St. Petersburg town prosecutor opened criminal case no. 7806 against Sh., 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 Department for especially serious crimes of the prosecutor's office, issued a search warrant worded 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 to search the premises at the address [the applicant's home address] where [the applicant] permanently resides and to seize objects and documents found during the search.”
On the same day a deputy prosecutor of St. Petersburg approved the search and countersigned the warrant.
The Government submit that the applicant was not a party to criminal case no. 7806 and did not represent anyone involved. The applicant replies that at the material time he was a representative of:
(a) Mr S. who was first a suspect and later a witness in criminal case no. 7806. On 21 February 2000 the applicant represented S. before the Oktyabrskiy Court of St. Petersburg in the proceedings concerning a complaint about the investigator D.'s decision. The applicant was also S.'s representative in unrelated civil proceedings on the basis of a power of attorney of 25 May 1999;
(b) Mr Yu. who was a defendant in criminal case no. 7806 and whom the applicant represented from 10 July to 25 December 1998;
(c) Mr B. who was the victim in a criminal case concerning the murder of his son. Subsequently that case was joined to criminal case no. 7806. The applicant represented B. from 11 February to 23 March 2000;
(d) Mr Sh. who was a defendant in criminal case no. 7806 and whom the applicant 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 District directorate for the fight against the organised crime (РУБОП) and two attesting witnesses (понятые), searched the applicant's flat. According to the search record, the applicant was invited to “voluntarily surrender... documents related to the public company TNKhK and federal industrial group RossCo”. The applicant responded that he had no such documents and signed 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 search record, 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 US dollars. The applicant submits that the seized documents included, in particular, S.'s power of attorney of 25 May 1999 and extracts of a memorandum prepared in B.'s case.
On the same date the investigator D. held a formal interview with the applicant in the framework of criminal case no. 7806.
On 17 March 1999 the investigator L. issued an order to attach the documents seized at the applicant's flat and the central unit of his computer as “material exhibits” in criminal case no. 7806.
2. Judicial review of the search and attachment orders
The applicant complained to a court. He sought to have the search and seizure of documents declared unlawful. He claimed, in particular, that the central unit of the computer, as well as his personal notebook and his clients' files and records, were not related to the criminal case and could not be attached as exhibits 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 which is evident from the record of the examination of the seized items and print-outs of the files contained in the central unit.
Thus, the above shows that the aim of the search has been achieved, however, the order to attach the seized objects and documents as exhibits to the criminal case amounts to forfeiture of the [applicant's] property which was taken from him and never returned. While [the applicant] was neither a suspect, nor a defendant in the criminal case and he 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 exhibits...”
The 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 new examination by a differently composed court. The City Court pointed out that the first-instance court erroneously assimilated the order on the attachment of objects as exhibits to forfeiture of the applicant's property.
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 new 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 the 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 one of the episodes of 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
