Communicated on 7 September 2016
THIRD SECTION
Application no. 26067/08
Marina Aleksandrovna BELINSKAYA against Russia
and 11 other applications
(see list appended)
The applicants are Russian nationals.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
The applicants are lawyers and members of the Bar associations (with the exception of the second, third and fourth applicants in case no. 14244/11 who are clients of the first applicant, a lawyer). Police searched their residential flats and/or professional offices. The applicants’ complaints to the national courts about the alleged unlawfulness and/or manner of execution of search warrants (lack of grounds, wide terms, absence of procedural safeguards) remained unsuccessful.
B. Relevant domestic law and practice
For a summary of relevant domestic law and practice see Yuditskaya and Others v. Russia, no. 5678/06, §§ 16-18, 12 February 2015.
In a recent resolution the Constitutional Court of the Russian Federation invited the legislators to adopt additional safeguards for searches of lawyers’ premises, in particular, to ensure separate treatment of regular and legally privileged materials (Resolution 33П/2015 of the Constitutional Court of the Russian Federation of 17 December 2015).
COMPLAINTS
The applicants complain under Article 8 of the Convention about unlawful searches of the lawyers’ premises. They also complain about lack of an effective judicial review of the unlawful searches.
The applicants in cases 60648/08, 2397/11, 7101/15, 29786/15 and 36833/16 complain about unlawful seizure of their system units and/or hard drives and lack of effective remedies available to them in this respect.
COMMON QUESTIONS
1. As regards the searches of the lawyers’ premises, was the interference with the applicants’ right to respect for their private life, home and correspondence “necessary in a democratic society” as required by Article 8 of the Convention? In particular, were the lawyers afforded sufficient procedural safeguards against interference with professional secrecy (see Smirnov v. Russia, no. 71362/01, §§ 44 and 48, 7 June 2007; Kolesnichenko v. Russia, no. 19856/04, §§ 31-35, 9 April 2009; Yuditskaya and Others v. Russia, no. 5678/06, §§ 27-31, 12 February 2015)?
2. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 8 of the Convention, as required by Article 13 of the Convention? In particular, did the national law require the national courts to examine the issues of “proportionality” and “necessity in a democratic society” in respect of the searches of lawyers’ premises (see Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, §§ 135-39, ECHR 1999‑VI; Peck v. the United Kingdom, no. 44647/98, §§ 105-07, ECHR 2003‑I; and Keegan v. the United Kingdom, no. 28867/03, §§ 40-43, ECHR 2006‑X)? Did the national courts assess the “proportionality” and “necessity in a democratic society” of the searches in the present cases?
CASE SPECIFIC QUESTIONS
60648/08, 2397/11, 7101/15, 29786/15 and 36833/16
1. In respect of the applicants’ hard drives and other possessions seized during searches, has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention? If so, was that interference necessary to control the use of property in accordance with the general interest? In particular, did that interference impose an excessive individual burden on the applicant (see Smirnov v. Russia, no. 71362/01, §§ 58-59, 7 June 2007)?
2. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 1 of Protocol No. 1 to the Convention, as required by Article 13 of the Convention?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
Search warrant (date, court, grounds)
Judicial venue used
26067/08
17/03/2008
Marina Aleksandrovna BELINSKAYA
18/12/1970
St Petersburg
Olga Andreyevna STASYUK
26/07/2006
Vyborgskiy District Court of St Petersburg
“D... acquired drugs from ... [L.] who resides at [the address] and, thus, objects and documents, which could be used as evidence and to establish persons having committed this offence, can be found at this flat”.
Lawfulness of the search warrant – a supervisory review request dismissed on 14/05/2007
Manner (conduct of the police during the search) – dismissed on 25/07/2007 (upheld on appeal on 17/10/2007)
52152/08
23/05/2008
and 16/01/2013
Andzhey
Borisovich
SAPEGIN
20/08/1974
St Petersburg
(1) 11/01/2008
Oktyabrskiy District Court of Kirov
“The court has been presented with sufficient evidence that in the premises of OOO “Tsentr yuridicheskikh ekspertiz” at the address [...] objects and documents relevant to the criminal case [on fraud] may be located.”
(2) 27/06/2012 (two search warrants in respect of the applicant’s law office and a residential flat)
Vasileostrovskiy District Court of St Petersburg
a. [law office] “Having examined the case-file submitted by the investigator it was established that Sapegin is involved in the unlawful transfer-out of assets, acquired by G.; this activity is performed at an office at the address [...] which is also used by Sapegin as a law office; I grant the investigator’s motion [for a search] because according to the case-file submitted by the investigator, there are sufficient data to believe that at the indicated address objects and documents relevant to the criminal case may be found”.
b. [residential flat] “Having examined the case-file submitted by the investigator, I grant the investigator’s motion [for a search] because according to the submitted case-file there are sufficient data to believe that at the indicated address objects and documents relevant to the criminal case may be found.”
(1)
Lawfulness - two cassation complaints against the search warrant – returned on 04/02/2008 and 03/03/2008
Manner – dismissed on 15/02/2008 (upheld on 18/03/2008)
(2)
Lawfulness – cassation complaints – rejected on 04/10/2012 and 11/10/2012
60648/08
01/12/2008
Irina
Aleksandrovna
FAST
26/07/1974
Nizhniy Novgorod
03/09/2008
Leninskiy District Court of Nizhniy Novgorod
“Having examined the motion and having heard the investigator the court finds the motion reasonable and grants it.”
Lawfulness - cassation complaint rejected on 17/10/2008
2397/11
21/12/2010
Aleksandr
Vanovich
BALYAN
25/12/1969
Novosibirsk
Sergey
Anatolyevich SOKOLOV
07/10/1969
Moscow
Ruslan Vladislavovich SOLOVYEV
28/04/1975
Cheboksary
Anna Edvarovna STAVITSKAYA
16/04/2010
Tverskoy District Court of Moscow
“The investigator’s motion complies with the requirements of the criminal procedural law for the form and content, with the consent of the proper public officer, at the same time the investigation has sufficient grounds to believe that they may find at ZAO “Printsip prava”, located at [...] objects and documents relevant for the criminal case.
Given that the documents which may interest the investigation may contain information protected by law, which in accordance with the Advocates Act no. 63-FZ of 31.05.2002, may be covered by client-lawyer privilege, performance of the search is possible on the basis of a court decision.”
Lawfulness – cassation complaint dismissed on 23/06/2010
Manner – dismissed on
4/06/2010 (upheld on 2/08/2010)
14244/11
05/02/2011
Marina Aleksandrovna BELINSKAYA
18/12/1970
St Petersburg
Nikita
Nikolayevich SOKOLOV
15/05/1977
St Petersburg
Valeriy
Vasilyevich BURYKIN
02/12/1953
St-Peterbourg
Oleg
Yuryevich MAKOVOZ
10/08/1968
St-Petersbourg
Tatyana Fedorovna KLYKOVA
25/03/2010
Kalininskiy District Court of St Petersburg
“As the submitted documents, witness statements demonstrate, an unknown person provided forged medical documents [about Mr M. [the 4th applicant] having certain diseases entitling him to release from detention]. ... based on statements of witness P., Mr Sch. prepared a consultant’s opinion on the state of health of Mr M. following a lawyer’s request from Ms B. [the 1st applicant]. ... In the court’s opinion the above circumstances show that Ms B. may be involved in the commission of the above offence and that at the place of her residence can be located objects and documents relevant to the investigation of the present criminal case, namely: data storage devices with information regarding preparation of an expert opinion on Mr M.’s state of health, consultants’ opinion of Mr M.’s state of health, [extracts from Mr M’s medical records], draft notes related to the above documents and other objects excluded from free civil circulation”.
Lawfulness – cassation complaint dismissed on 11/05/2010
Manner – dismissed on 15/06/2010 (upheld on 30/08/2010)
78187/11
07/12/2011
Tatyana Aleksandrovna BULYCHEVA
07/10/1983
Khabarovsk
22/04/2011
Kirovskiy District Court of Khabarovsk
“The arguments stated in the [investigator’s] motion, have found their confirmation, [the applicant] is a lawyer and works at the office at [the address] [...] where objects and documents relevant to the criminal case can be located.”
Lawfulness – cassation complaint dismissed on 07/06/2011
55692/12
07/08/2012
Aleksandr
Ivanovich
SIRINOV
19/03/1959
St Perersburg
Olga Vladimirovna SIRINOVA
24/01/1975
St Petersburg
1/12/2011
Gatchinskiy Town Court of the Leningrad Region
“As follows from the documents submitted to the court, a number of people took measures to bring to [the applicants] documents related to the credits issued to [company A], that is, related to the circumstances of fraud in respect of [company B] representing the object of the present investigation.
According to the testimony of Mr M. he signed documents related to the activities of [company A] in [the applicants’] presence in their office.
Based on the above there are grounds to believe that at the indicated address can be found objects and documents related to commercial activities of [company A], receipt and disposal of credit funds...”
Lawfulness – cassation complaint rejected on 8/02/2012
Manner – rejected on 05/03/2012 (upheld on 05/06/2012)
18403/13
26/02/2013
Olesya
Petrovna MOISEYEVA
28/08/1973
Vladivostok
13/07/2012 (two identical search warrant in respect of the applicant’s residential flat and office)
Pervorechenskiy District Court of Vladivostok
[when six co-accused persons and three of their representatives were studying the materials of the criminal case against them, three volumes of documents disappeared from the police station.]
“In order to find the stolen documents it is necessary to search [the applicant’s flat and office].”
Lawfulness – cassation complaint rejected on 28/08/2012
7101/15
27/01/2015
Konstantin Viktorovich LAZUTKIN
15/05/1974
Yekaterinburg
23/09/2014 (in respect of the applicant’s residential flat)
Court – unknown
“While conducting operational-search activities [the Federal Security Service] received information about [the applicant’s] and unidentified persons’ involvement in foreign currency transactions on transfer of financial means in a foreign currency and Russian currency to the accounts of non-residents on behalf of [Company A] with the use of forged documents. It is established that [the applicant] has information about this illegal activity and persons involved in this crime. At the place of [the applicant’s] residence are kept documents and objects used for criminal activities.”
Search of the applicant’s office – no information regarding the search warrant.
The applicant claims that no effective remedies were available to him
29786/15
02/06/2015
Vladimir Vladimirovich
PARNACHEV
27/03/1973
Novosibirsk
Aleksey Vladimirovich
PESTOV
22/05/1975
Novosibirsk
Viktor
Viktorovich PROKHOROV
30/03/1978
Novosibirsk
Maksim Valeryevich
ROZHKOV
30/10/1980
Novosibirsk
5/10/2014
Oktyabrskiy District Court of Novosibirsk
[The second applicant’s client was suspected of misappropriation of funds by means of transferring out money for consulting and legal services to an auditing firm N. and to the Novosibirsk Town Bar Association (“NTBA”). The national courts authorised to search premises (located in one building) occupied by the NTBA, auditing company N. and other lawyers to find and seize documents related to provision of consulting and legal services by company N. and NTBA. The court search warrant contained a detailed list of exact documents that the investigators were looking for. The courts also allowed seizure of all devices and mobiles containing correspondence related to provision of consulting and legal services by company N. and NTBA.]
Lawfulness – appeal complaint dismissed on 3/12/2014; cassation complaint dismissed on 25/02/2015
19667/16
31/03/2016
Svetlana Aleksandrovna PONYAYEVA
13/10/1981
St Petersburg
(1) 26/01/2015 (in respect of the office)
Moskovskiy District Court of St Petersburg
[The judge authorised the search of the office of the company which was a client of the applicant and where she rented a room as her working space at the company. The judge found it unsubstantiated that the applicant had been a member of the Bar association and that she indeed had a working place at the company.]
(2) 13.02/2015 (in respect of the flat)
Primorskiy District Court of St Petersburg
“Having examined the submitted documents the court considers that there is an objective necessity to perform a search of [the applicant’s] flat – the court deems it necessary to allow the search of the above-mentioned flat.”
(1) Manner - rejected on 15/04/2015 (upheld on 25/11/2015);
(2) Lawfulness – the appeal proceedings are still pending despite the applicant’s complaint of 20/11/2015 about the unreasonable length of the examination of her appeal complaint
36833/16
15/06/2016
Oleg
Ariyevich LEVCHENKO
28/02/1970
Orenburg
15/04/2015
Leninskiy District Court of Orenburg
[no text available]
Manner – rejected on 13/05/2015; appeal complaint dismissed on 20/07/2015; cassation complaints dismissed on 29/10/2015 and 24/12/2015
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