Communicated on 29 September 2016
THIRD SECTION
Application no. 55673/10
Andrey Valentinovich AGISHEV
against Russia
lodged on 5 August 2010
STATEMENT OF FACTS
The applicant, Mr Andrey Valentinovich Agishev, is a Russian national, who was born in 1965 and lives in Perm. He is represented before the Court by Mr M.N. Popov, a lawyer practising in Perm.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Police inquiry into the applicant’s business activity
At the relevant time the applicant was a member of the Legislative Assembly of the Perm Region.
On 9 September 2008 the Perm Regional Department of the Interior received a report suggesting that the applicant was involved in an unlawful business activity and tax evasion. On the basis of that information, a preliminary criminal inquiry was instituted.
On 18 September 2008 the case was handed over to the Investigative Committee of the Perm Region.
On 21 October 2008 the investigative authorities refused to open a criminal case against the applicant.
On 15 December 2008 that refusal was quashed by a higher investigative authority, which, as appears, recommended the investigator in charge, Mr L., to find documentary evidence that the applicant had received any income from the allegedly unlawful business activity.
Mr L. then requested various banks in Perm to provide him with information concerning the applicant’s bank accounts and transactions.
In particular, on 15 December 2008, with reference to section 26 of the the Bank Act (see the “Relevant domestic law” part below) and to the pending criminal inquiry in respect of the applicant, Mr L. requested the “Gazprombank”, the “FAKB Slavyanskiy Bank” and the “OAO AKB Ural FD” to give him information whether the applicant had bank accounts, and, if so, when they had been opened and in which bank transactions they had been involved. Mr L. also requested the aforementioned banks to furnish him with the applicant’s bank account statements for the period between 26 May 2004 and 15 December 2008. The information about the sources and reasons of the income payments had to be included in the bank statements.
On 18 December 2008 the “Gazprombank” rejected Mr L.’s request, referring to the bank secrecy.
On an unspecified date the “FAKB Slavyanskiy Bank” submitted the requested information to Mr L.
On 24 December 2008 and 12 January 2009 the “OAO AKB Ural FD” also furnished Mr L. with the requested information. In particular, it submitted the applicant’s bank statements with the information about all his transactions related to the period in question.
Mr L. collected the information from the banks and transmitted it to the Perm Regional Department of the Interior for the examination on the merits.
On 25 December 2008 a Deputy Head of the Perm Regional Department of the Interior ordered a group of police specialists to examine the applicant’s bank documents and to check if he had fully discharged his obligation to pay taxes.
On the basis of a report, prepared by the police specialists, on 15 January 2009 the Perm Regional Department of the Interior opened a criminal case against the applicant.
2. Internal investigation into the lawfulness of the investigator’s request
On 3 April 2009 the investigative authorities carried out an internal investigation into the lawfulness of Mr L.’s request regarding the disclosre of the applicant’s bank details, and established that it had been unlawful and had resulted in a breach of the applicant’s bank secrecy.
It was also established that the information about the applicant’s bank accounts and his transactions had not leaked from the investigative authorities or become known by third parties.
3. The applicant’s civil claim
(a) Proceedings before the first-instance court
On 27 April 2009 the applicant brought a civil claim against the “OAO AKB Ural FD” bank (“the defendant bank”) and the Russian Ministry of Finance seeking compensation for non-pecuniary damage caused by the unlawful collection and disclosure of private information. In particular, the applicant claimed that the investigative authorities had not only unlawfully obtained the information about his bank accounts, but had also transmitted it to the Perm Regional Department of the Interior and journalists. To support his allegations he submitted a newspaper article of December 2008 containing some information related to his bank secrecy.
The Leninskiy District Court of Perm involved in the proceedings a co‑defendant, the Investigative Committee of Russia, and two third parties, the Investigative Committee of the Perm Region and Mr L.
On 14 December 2009 the Leninskiy District Court of Perm examined the claim on the merits.
At the hearing the applicant maintained his claim, stating that in monetary terms his non-pecuniary damage amounted to RUB 500,000 (approximately EUR 11,000).
The Ministry of Finance of Russia argued that the applicant had failed to prove that the authorities had been guilty of the breach of his bank secrecy.
The defendant bank argued that the information about the applicant’s bank accounts was of a purely economic nature and did not concern his private life; that the transmission of the information to the investigative authorities had been justified by the pending preliminary criminal inquiry; that that bank had no intent to inflict non-pecuniary damage on the applicant; and that the requested amount of compensation was inadequate.
The Investigative Committee of Russia and the Investigative Committee of the Perm Region argued that Mr L.’s actions as such had not resulted in the applicant’s moral suffering; that the investigator had acted lawfully; and that the higher investigative authority had approved the request before it was sent to the defendant bank.
Taking into account the evidence before it and the parties’ arguments, the Leninskiy District Court of Perm granted the applicant’s claim in part. It noted that the applicant’s bank account had been opened by the defendant bank for his personal needs rather than his business activity. Therefore the applicant’s bank secrecy was a part of his private life, protected by Article 23 of the Russian Constitution. The defendant bank had unlawfully interfered with the applicant’s private life, because it had had no right to disclose the information on the applicant’s bank account, even to an investigator, if no criminal case had been opened. In the investigator’s request it had been noted that the request had been made in connection with a preliminary criminal inquiry. Accordingly, it had been clear that no criminal case against the applicant had been pending at the time. Therefore the defendant bank should have dismissed the request as being lodged in breach of section 26(4) of the Bank Act. Nevertheless, the defendant bank had disclosed not only the information relevant to the inquiry, but also the information about all of the applicant’s transactions, including his and his family member’s personal purchases. The court thus held that the defendant bank had to pay compensation for non-pecuniary damage in the amount of RUB 15,000 (approximately EUR 335).
The applicant’s claim against the investigative authorities was rejected. The court held that the investigator’s request had not amounted to an interference with the applicant’s bank secrecy, as the defendant bank could have dismissed it. The applicant’s allegation that Mr L. had divulged the bank secrecy was dismissed, because the invoked newspaper article had been published before the requested information had been received by the investigator.
(b) Proceedings before the appellate court
The applicant and the defendant bank appealed.
The applicant stated that the first-instance court had overlooked the fact that the defendant bank disclosed the confidential information following the unlawful request from the investigator. Accordingly, in the applicant’s view, the investigator had also been responsible for the interference with his private life and should have been held liable. The applicant also claimed that no assessment had been given to the alleged transmission of the information from the investigator to the Perm Regional Department of the Interior.
The defendant bank claimed that no moral suffering had been sustained by the applicant, because at the time of the disclosure he had not been aware of it.
On 9 February 2010 the Perm Regional Court upheld the judgment on appeal endorsing the first-instance court’s reasoning. The court stated that the parties’ arguments had already been duly considered by the first‑instance court and that no new arguments capable of refuting the first‑instance court’s conclusion had been submitted.
The applicant’s subsequent attempts to have his case reviewed in supervisory review proceedings were unsuccessful.
4. The applicant’s request to open a criminal case
On 5 February 2009 the applicant requested the Prosecutor of the Perm Region to institute a criminal investigation into a breach of his bank secrecy. According to the applicant, the investigating authorities’ and the bank’s officials committed an offence punishable under Article 183 of the Criminal Code of Russia “Unlawful gaining and disclosure of information related to commercial, tax or bank secrecy”.
On 22 May 2009 the investigative authorities decided not to open a criminal case. The applicant’s appeal against that decision resulted in the series of new decisions not to open a criminal case dated 18 November and 24 December 2009 and 28 June 2010.
Referring to the results of the internal investigation of 3 April 2009, the investigative authorities found that although the investigator’s request was indeed unlawful, he had acted in good faith to ensure the thoroughness of the inquiry against the applicant. Therefore, his actions did not amount to a criminal offence.
A similar conclusion was made in respect of the bank’s officials. It was found that they had granted the unlawful request of the investigator acting in good faith. Therefore their actions did not constitute a criminal offence.
By the final decision of 9 November 2010 the Perm Regional Court dismissed the applicant’s appeal against the decision of 28 June 2010.
B. Relevant domestic law
1. Constitution of Russia
The relevant constitutional provision provides as follows:
Article 23
“1. Everyone has the right to inviolability of private life, personal and family confidentiality, the protection of his/her honour and good name...”
2. The Federal Law on Banks and Bank Activities
Federal Law no. 395-1 “On Banks and Bank Activities” of 2 December 1990 (“the Bank Act”) as in force at the relevant time provided in its relevant part as follows:
Article 26. Bank Secrecy
“A credit organisation, the Bank of Russia, and a deposit insurance organisation guarantee the bank secrecy related to their clients’ and their correspondents’ transactions, accounts and deposits.
All employees of a credit organisation must keep in secret the information about the transactions, accounts and deposits of its clients and correspondents, as well as other information considered as a secret by the credit organisation, as far as it is not in contradiction with the federal law.
...
A credit organisation submits a bank statement related to a person’s accounts and deposits to ... pre-investigative authorities, if their request is approved by the head of the investigative body and only if the request concerns [an opened criminal] case for which they are in charge.”
3. The Criminal Code of Russia
The relevant provisions of the Code as in force at the material time read as follows:
Article 183. Unlawful acquisition and divulgence of information related to commercial, tax or bank secrecy
“1. Collection of information related to commercial, tax or bank secrecy by way of stealing documents, or with the help of bribery, intimidation, or by other unlawful means
shall be punishable by a fine in the amount of up to RUB 80,000, or amounting to the wages, salary or any other income of the convicted person for a between one and six months, or deprivation of liberty for a period up to two years.
2. Unlawful divulgence or use of the information related to commercial, tax or bank secrecy without the authorization of their owner, committed by a person to whom it was entrusted or became aware owing to its service or work
shall be punishable by a fine in the amount of up to RUB 120,000, or amounting to the wages, salary or any other income of the convicted person for a period up to one year with the restriction on certain posts or activity for convicted person for a period of up to three years, or the deprivation of liberty up to three years.
...”
COMPLAINT
The applicant complains under Article 8 of the Convention about a breach of his right to respect for his private life as a result of a disclosure of information relating to his bank accounts and bank transactions.
QUESTIONS TO THE PARTIES
1. Does the applicant’s complaint about a disclosure of information relating to his bank accounts and transactions (hereinafter “the bank information”) fall within the scope of Article 8? In particular, can the bank information be regarded as constituting an element of the applicant’s “private life”, within the meaning of Article 8 of the Convention (see M.N. and Others v. San Marino, no. 28005/12, § 51, 7 July 2015)?
2. In the light of the domestic courts’ decisions of 14 December 2009 and 9 February 2010, can the applicant still claim to be a “victim”, within the meaning of Article 34 of the Convention, of the alleged violation of his right to respect for his private life secured by Article 8 of the Convention, on account of the disclosure of the bank information?
In particular:
(a) was there an acknowledgement of the alleged violation of the applicant’s aforementioned right?
(b) can the redress afforded to him be regarded as “sufficient” for the purpose of Article 8 of the Convention (see G.B. and R.B. v. the Republic of Moldova, no. 16761/09, §§ 29-35, 18 December 2012)?
On the assumption that the applicant may still claim to be a “victim” of the violations alleged,
3. Has there been an interference with the applicant’s right to respect for his private life, within the meaning of Article 8 of the Convention? If so,
(a) was such interference “in accordance with law”?
(b) did it pursue a legitimate aim?
(c) was it proportionate to the aim pursued?
Alternatively, has there been a positive obligation on the part of the State to ensure that the applicant’s “private life”, within the meaning of Article 8 of the Convention, is respected? If so, was it fulfilled?
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