Communicated on 17 November 2020
Published on 7 December 2020
THIRD SECTION
Application no. 76344/12
Konstantin Kirillovich BEZRUKOV
against Russia
lodged on 23 October 2012
SUBJECT MATTER OF THE CASE
The application concerns detention and criminal proceedings against the applicant, a practising lawyer and a member of the Bar. His meetings with his client were filmed by that client, at first on her own initiative and then as part of a police operation. Immediately after the latest meeting the police searched his person and his car and seized documents allegedly covered by legal professional privilege.
QUESTIONS TO THE PARTIES
1. Was the applicant’s pre-trial detention based on “relevant and sufficient” reasons and were the proceedings conducted with “special diligence”, as required by Article 5 § 3 of the Convention?
2. Was Article 5 § 4 of the Convention applicable following the applicant’s conviction by a trial court (see Stollenwerk v. Germany, no. 8844/12, § 35, 7 September 2017)? If yes, were the applicant’s applications for release pending the appeal of his conviction examined speedily, as required by Article 5 § 4?
3. Did the filming of the applicant’s meeting with his client in the framework of the police operation violate his right to respect for his private life under Article 8 of the Convention? In particular:
– Was the refusal to disclose the surveillance authorisation to the applicant compatible with Article 8 (see Zubkov and Others v. Russia, nos. 29431/05 and 2 others, §§ 129-32, 7 November 2017)?
– Did the Perm Regional Court verify whether there was a “reasonable suspicion” against the applicant and apply the test of “necessity in a democratic society”, and in particular assess whether the surveillance measures carried out against the applicant hwere proportionate to any legitimate aim pursued (see Moskalev v. Russia, no. 44045/05, §§ 41-44, 7 November 2017)? Did the Perm Regional Court weigh the obligation to protect lawyer-client confidentiality against the needs of the criminal investigation? Did it examine the possibilities of obtaining the information sought from other sources?
– Did the domestic law provide for minimum safeguards developed in the Court’s case-law in order to avoid abuses of power in cases where legally privileged material could be acquired through measures of secret surveillance (see Dudchenko v. Russia, no. 37717/05, §§ 105-07, 7 November 2017, with further references)?
– Did the applicant’s client waive legal professional privilege by agreeing to the police operation involving the filming of her meeting with the applicant?
4. Did the storage, use and playing at an open hearing in the criminal proceedings against the applicant of the video recordings of his meetings with his client, made by that client at her own initiative, violate the applicant’s right to respect for his private life under Article 8 of the Convention? Did the domestic law meet the “quality” requirements? In particular, in cases involving receipt by the authorities of video recordings made by private individuals, did the domestic law lay down with sufficient precision the circumstances in which the authorities might store and make use of such recordings as evidence in criminal proceedings (see, mutatis mutandis, Rotaru v. Romania [GC], no. 28341/95, § 56, ECHR 2000‑V)? Given that the authorities decided to store and make use of the recordings in the present case, were the following minimum safeguards set out in law: the procedure to be followed for examining, using and safely storing the data; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings might or had to be erased or destroyed (see, mutatis mutandis, Roman Zakharov v. Russia [GC], no. 47143/06, § 231, ECHR 2015)? Did the law provide for sufficient procedural safeguards against interference with professional secrecy?
5. As regards the search of the applicant’s person and his car and seizure of documents, was there an interference with his right to respect for his private life and, if yes, was it “necessary in a democratic society” as required by Article 8 of the Convention? In particular, was the applicant 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; Kruglov and Others v. Russia, nos. 11264/04 and 15 others, § 132, 4 February 2020)? Was the fact that the judicial authorisation to study the documents seized from the applicant was issued in ex parte proceedings and that the applicant was not given a copy of that judicial authorisation compatible with Article 8 (compare Kruglov and Others v. Russia, nos. 11264/04 and 15 others, §134, 4 February 2020)?
6. The Government are requested to produce copies of the following documents:
– the decision of 14 December 2011 by the Perm Regional Court authorising a combination of operative search measures against the applicant, in particular an operative experiment, surveillance of the applicant, and a search of his car;
– the decision of 15 March 2012 by the Leninskiy District Court of Perm authorising the police to study the documents seized from the applicant.
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