CASE OF AKHLYUSTIN v. RUSSIA

THIRD SECTION

CASE OF AKHLYUSTIN v. RUSSIA

(Application no. 21200/05)

JUDGMENT

STRASBOURG

7 November 2017

FINAL

05/03/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Akhlyustin v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Helena Jäderblom, President,
Branko Lubarda,
Helen Keller,
Dmitry Dedov,
Pere Pastor Vilanova,
Alena Poláčková,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 10 October 2017,

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

PROCEDURE

1. The case originated in an application (no. 21200/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vladimir Aleksandrovich Akhlyustin (“the applicant”), on 11 May 2005.

2. The applicant was represented by Mr O. Speranskiy, a lawyer practising in Ivanovo. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. The applicant alleged, in particular, that he had been subjected to covert surveillance in breach of Article 8 of the Convention and that the criminal proceedings against him had been unfair.

4. On 5 May 2010 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1979 and lives in Ivanovo.

6. At the relevant time the applicant was a member of the Ivanovo Region electoral commission.

7. On 23 October 2003 a deputy head of the Ivanovo Region Department of Internal Affairs ordered audio-visual “surveillance” (“наблюдение”) of the applicant’s office. The parties did not submit a copy of that decision.

8. The surveillance was carried out from 27 October to 5 November 2003 by means of a hidden camera.

9. The applicant was subsequently charged with abuse of power, an offence under Article 285 of the Criminal Code. While studying the criminal case file he discovered that it contained video recordings of him talking on the telephone in his office.

10. At the trial the applicant pleaded not guilty. He claimed, in particular, that the video recordings were inadmissible as evidence as they had been obtained unlawfully without prior judicial authorisation. He also challenged the authenticity of the recordings.

11. On 27 September 2004 the Leninskiy District Court of Ivanovo convicted the applicant of abuse of power and sentenced him to two years’ imprisonment, suspended for two years. The court relied on statements by several witnesses, physical evidence, expert reports and the video recordings of the applicant’s telephone conversations. It found that the video recordings were authentic and that they had been obtained in accordance with the procedure prescribed by law.

12. The applicant appealed. He reiterated, in particular, his argument that the video recordings were inadmissible as evidence.

13. On 12 November 2004 the Ivanovo Regional Court upheld the conviction on appeal. The court held that the District Court had correctly declared the video recordings admissible as evidence because they had been obtained in accordance with the procedure prescribed by law.

II. RELEVANT DOMESTIC LAW

A. Operational-search measures

14. The Operational-Search Activities Act of 12 August 1995 (Law no. 144‑FZ – hereafter “the OSAA”) provides that “operational-search” measures (“оперативно-розыскные мероприятия”) may include, among other things, the interception of postal, telegraphic, telephone and other forms of communication; the collection of data from technical channels of communication; the inspection of premises, buildings, other installations, vehicles and areas; “surveillance” (“наблюдение”); and “operative experiments” (“оперативный эксперимент”). Audio and video recording, photography, filming and other technical means may be used during operational-search activities, provided that they are not harmful to anyone’s life or health or to the environment (section 6).

15. The aims of operational-search activities are: (1) to detect, prevent, suppress and investigate criminal offences and identify persons conspiring to commit, committing, or having committed a criminal offence; (2) to trace fugitives from justice and missing persons; and (3) to obtain information about events or activities endangering the national, military, economic or ecological security of the Russian Federation (section 2 of the OSAA, as in force at the material time).

16. Operational-search measures may be conducted on the following grounds:

1. In connection with a pending criminal case;

2. Following the receipt of information

(1) that a criminal offence has been committed or is ongoing, or is being plotted; or about persons conspiring to commit, or committing, or having committed a criminal offence, even if such information is insufficient for a criminal case to be opened;

(2) about events or activities endangering the national, military, economic or ecological security of the Russian Federation;

(3) about fugitives from justice;

(4) about missing persons or unidentified bodies.

3. at the request of an investigator or a court in connection with a pending investigation or a pre-investigation inquiry;

4. at the request of other agencies performing operational-search activities on the grounds mentioned in this section;

5. on the basis of a decision ordering special State protection of a person in accordance with the law;

6. at the request of international law-enforcement organisations or law‑enforcement authorities of foreign countries, pursuant to international treaties to which the Russian Federation is a party.

Agencies performing operational-search activities may also collect data necessary for security clearance or vetting procedures before recruiting for certain official positions listed in this section of the Act or for verifying the information such officials are required to submit about themselves while in office, in particular with the aim of combatting corruption; before recruiting to positions involving access to facilities that are dangerous for the population or the environment; and before granting a detective or security licence (section 7, as in force at the material time).

17. Operational-search measures involving interference with the constitutional right to the privacy of postal, telegraphic and other communications transmitted by means of a telecommunications network or mail services, or within the privacy of the home, require prior judicial authorisation (section 8(2) of the OSAA). Such measures may be conducted following the receipt of information (1) that a criminal offence has been committed or is ongoing, or is being plotted; (2) about persons conspiring to commit, or committing, or having committed a criminal offence; or (3) about events or activities endangering the national, military, economic or ecological security of the Russian Federation (section 8(2) of the OSAA). At the material time such measures could be authorised only in cases where a person was suspected of, or charged with, a serious offence or an especially serious criminal offence, or might have information about such an offence (section 8(4) of the OSAA, as in force until 24 July 2007). Such measures could not be conducted on the other grounds mentioned in section 7 (section 8(9) of the OSAA).

18. On 20 March 2007 the Constitutional Court, in its decision no. 178‑O-О, dismissed as inadmissible a request for a review of the constitutionality of section 6 the OSAA. It held, in particular, that a separate judicial authorisation was not required for the use of audio and video recording, photography, filming or other technical means, irrespective of whether such equipment was used during operational‑search activities requiring prior judicial authorisation or during operational-search activities not requiring prior judicial authorisation.

B. Judicial review

19. For a summary of the domestic provisions on judicial review of operational-search measures, see Zubkov and Others (nos. 29431/05 and 2 others, §§ 58-76, 7 November 2017).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

20. The applicant complained that the covert surveillance measures carried out against him had violated his right to respect for his private life, home and correspondence. He relied on Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A. Admissibility

1. Submissions by the parties

21. The Government submitted that the applicant had not exhausted domestic remedies. Under Russian law a person who learned that he or she had been subjected to operational-search measures and believed that the actions of State officials ­had violated his or her rights was entitled to complain to a court under section 5 of the Operational-Search Activities Act (hereafter “the OSAA”). As explained by the Plenary Supreme Court, such complaints were to be examined in accordance with the procedure set out in Chapter 25 of the Code of Civil Procedure (hereafter “the CCP”) and the Judicial Review Act.

22. Instead of using the above effective remedy, the applicant had chosen to raise the issue of covert surveillance in the criminal proceedings against him by contesting the admissibility of the video recordings as evidence. The Government considered that contesting the admissibility of evidence in the framework of criminal proceedings could not be regarded as an effective remedy in respect of a complaint under Article 8. The aim of such a complaint was to exclude unlawfully obtained evidence from the list of evidence examined during the trial. It could therefore provide appropriate redress for a complaint under Article 6, but not for a complaint under Article 8. Indeed, the purpose of the criminal proceedings was to establish whether the defendant was innocent or guilty of the criminal charges levelled against him or her, rather than to attribute responsibility for the alleged violations of his or her right to respect for private life or correspondence.

23. The applicant submitted that the remedy suggested by the Government had been ineffective. He had raised the complaint about unlawful covert surveillance in the criminal proceedings against him, both before the trial court and on appeal. He therefore considered that he had exhausted the domestic remedies.

2. The Court’s assessment

(a) Exhaustion of domestic remedies

24. The Court notes at the outset that the applicant raised the issue of covert surveillance in the criminal proceedings against him. It agrees with the Government that the courts in the criminal proceedings were not capable of providing an effective remedy. Although they could consider questions of the fairness of admitting the evidence in the criminal proceedings, it was not open to them to deal with the substance of the Convention complaint that the interference with the applicant’s right to respect for his private life and correspondence was not “in accordance with the law” or not “necessary in a democratic society”; still less was it open to them to grant appropriate relief in connection with the complaint (see Khan v. the United Kingdom, no. 35394/97, § 44, ECHR 2000‑V; P.G. and J.H. v. the United Kingdom, no. 44787/98, § 86, ECHR 2001‑IX; Goranova-Karaeneva v. Bulgaria, no. 12739/05, § 59, 8 March 2011; and İrfan Güzel v. Turkey, no. 35285/08, §§ 106-07, 7 February 2017; and, by contrast, Dragojević v. Croatia, no. 68955/11, §§ 35, 42, 47 and 72, 15 January 2015; Šantare and Labazņikovs v. Latvia, no. 34148/07, §§ 25 and 40-46, 31 March 2016; and Radzhab Magomedov v. Russia, no. 20933/08, §§ 20 and 77-79, 20 December 2016). The Court therefore agrees with the Government that raising the issue of covert surveillance in the criminal proceedings cannot be regarded as an effective remedy in respect of a complaint under Article 8.

25. The Court will next examine whether a judicial review complaint under section 5 of the OSAA together with Chapter 25 of the CCP and the Judicial Review Act was an effective remedy to be exhausted. It notes that the scope of the judicial review complaint under section 5 of the OSAA lodged in proceedings under the Judicial Review Act and Chapter 25 of the CCP was limited to reviewing the lawfulness of the actions of the State officials performing surveillance activities. Indeed, in accordance with Chapter 25 of the CCP and the Judicial Review Act, in force at the material time, the sole relevant issue before the domestic courts was whether the actions of the State officials performing covert surveillance had been lawful. It is clear from the Supreme Court’s interpretation of the relevant provisions that “lawfulness” was understood as compliance with the rules of competence, procedure and contents. It follows that the courts were not required by law to examine the issues of “necessity in a democratic society”, in particular whether the contested actions answered a pressing social need and were proportionate to any legitimate aims pursued, principles which lie at the heart of the Court’s analysis of complaints under Article 8 of the Convention.

26. The Court has already found on a number of occasions, in the context of Article 8, that a judicial review remedy which was incapable of examining whether the contested interference answered a pressing social need and was proportionate to the aims pursued could not be considered an effective remedy (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).

27. In view of the above considerations, the Court finds that a judicial review complaint under section 5 of the OSAA lodged in proceedings under the Judicial Review Act and Chapter 25 of the CCP was not an effective remedy to be exhausted. It therefore dismisses the Government’s objection as to the non-exhaustion of domestic remedies.

(b) Compliance with the six-month time-limit

28. The Court observes that the applicant introduced his application within six months of the final judgment in the criminal proceedings against him. It is significant that he learned about the covert surveillance during those criminal proceedings. The prosecution used the intercepted material as evidence to substantiate the case against him. The Court considers that it was reasonable, in such circumstances, for the applicant to try to bring his grievances to the attention of the domestic courts by raising the issue at the trial. The Court discerns nothing in the parties’ submissions to suggest that the applicant was aware, or should have become aware, of the futility of such a course of action. Indeed, the domestic courts could, and did, examine whether the surveillance measures had been lawful and therefore addressed, in substance, part of the applicant’s Convention complaint. In those circumstances, the Court considers that the applicant cannot be reproached for his attempt to bring his grievances to the attention of the domestic courts by means of a remedy which he mistakenly considered effective (see, for a similar reasoning, Radzhab Magomedov, cited above, §§ 77-79).

29. The Court accordingly finds that the applicant complied with the six‑month rule.

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

B. Merits

1. Submissions by the parties

31. The Government submitted at the outset that the applicant’s office could not be considered his “home” within the meaning of Russian law. Under Russian law only residential premises were considered to be a “home” that enjoyed special protection. Other premises, such as business premises, were not regarded as a “home” and did not therefore enjoy any special protection. The applicant was a State official and his office was situated on publicly owned premises. He was supposed to carry out only professional activities in his office; he was not allowed to carry out any private activities there. In any event, criminal activities were not covered by Article 8. Accordingly, Article 8 did not apply to the audio-visual surveillance of the office in question. There had therefore been no interference with the applicant’s right to respect for his home or private life.

32. The Government further submitted that the surveillance of the applicant’s office had been carried out in accordance with the procedure prescribed by domestic law. Under domestic law, prior judicial authorisation was required only for surveillance measures involving an interference with the constitutional right to the privacy of postal, telegraphic and other communications transmitted by means of telecommunications networks or mail services, or within the privacy of the home. Prior judicial authorisation was not required for measures which did not interfere with the above-mentioned constitutional right, even if they involved audio or video recording, photography, filming or other technical means permitted by law. Such measures were authorised by the head of the agency performing the surveillance measures. No judicial authorisation was therefore required in the present case because the audio-visual surveillance of the applicant’s office had not interfered with the privacy of his postal, telegraphic or other communications transmitted by means of a telecommunications network or mail services, and were not carried out within the privacy of his home.

33. The Government further argued that Russian law met the Convention “quality of law” requirements. All legal provisions governing covert surveillance had been officially published and were accessible to the public. The Government disagreed with the findings about the “quality of law” made in the case of Bykov v. Russia ([GC], no. 4378/02, 10 March 2009), where the Court had omitted to examine their argument that Article 8 was not applicable to the circumstances of the case and that there had been no interference with the applicant’s rights guaranteed by that Article.

34. The applicant submitted that the audio-visual surveillance of his office had been unlawful. Given that he had been filmed while talking on the telephone, the surveillance had interfered with the privacy of his telephone communications. Under domestic law such interference required prior judicial authorisation.

35. The applicant further submitted that he had enjoyed very few, if any, safeguards in the procedure by which the audio-visual surveillance of his office had been ordered and implemented. In particular, the legal discretion of the authorities to order surveillance was not subject to any conditions, and its scope and the manner in which it was exercised were not defined; no other specific safeguards were provided for.

2. The Court’s assessment

(a) Was there an interference?

36. The Court will first examine the Government’s argument that the applicant’s office could not be considered his “home” and that the audio-visual surveillance of that office did not, therefore, amount to an interference with the applicant’s rights guaranteed by Article 8 § 1.

37. The Court has repeatedly held that the notion of “home” in Article 8 § 1 does not only encompass a private individual’s home. It reiterates that the word “domicile” in the French version of Article 8 has a broader connotation than the word “home” and may extend, for example, to a professional person’s office (see Buck v. Germany, no. 41604/98, § 31, ECHR 2005‑IV, with further references). It has also found on many occasions that a person’s private life may be concerned in measures effected outside a person’s home or private premises (see Uzun v. Germany, no. 35623/05, § 44, ECHR 2010 (extracts), with further references). Thus, according to the Court’s case-law, telephone calls from business premises, including a Sate official’s office, are covered by the notions of “private life” and “correspondence” for the purposes of Article 8 § 1 (see Halford v. the United Kingdom, 25 June 1997, § 44, Reports of Judgments and Decisions 1997‑III). E-mails and communications exchanged via an instant messaging account sent from work are similarly protected under Article 8, as is information derived from the monitoring of personal Internet usage (see Copland v. the United Kingdom, no. 62617/00, § 41, ECHR 2007‑I, and Bărbulescu v. Romania [GC], no. 61496/08, §§ 73-81, ECHR 2017). The Court has also found that a search of a prosecutor’s office amounted to an interference with his “private life” (see Peev v. Bulgaria, no. 64209/01, §§ 37-40, 26 July 2007) and that covert filming of a person on police premises was also an interference with private life (see Perry v. the United Kingdom, no. 63737/00, §§ 36‑43, ECHR 2003‑IX (extracts)).

38. In the cases mentioned above the Court has used the “reasonable expectation of privacy” test to decide whether there was an interference with the applicant’s rights guaranteed by Article 8. It has however also noted that a person’s reasonable expectations as to privacy, although a significant factor, was not necessarily a conclusive one. Private-life considerations as a rule arose once any systematic or permanent record had come into existence, even if such an audio or video recording had been made while the person was in a public place (see Uzun, cited above, § 44, with further references).

39. Turning to the present case, the Court notes that there is no evidence of any warning having been given to the applicant by his employer that his office would be liable to be filmed or that his telephone calls would be liable to interception. He therefore had a reasonable expectation of privacy in his office, including for any telephone calls made from the office (see, for similar reasoning, Halford, cited above, § 45, and Bărbulescu, cited above, §§ 73-81). It is also significant that the applicant was filmed and the recordings were stored, examined by third parties without the applicant’s knowledge or consent, and used as evidence in the criminal proceedings. The surveillance measures against the applicant therefore amounted to an interference with his “private life” within the meaning of Article 8 § 1. It is not necessary to consider whether the covert surveillance also constituted an interference with his right to respect for his home or correspondence within the meaning of Article 8 § 1.

(b) Was the interference justified?

40. The Court reiterates that such interference will give rise to a breach of Article 8 of the Convention unless it can be shown that it was “in accordance with law”, pursued one or more legitimate aims as defined in the second paragraph and was “necessary in a democratic society” to achieve those aims (see, among other authorities, Goranova‑Karaeneva, cited above, § 45).

41. The wording “in accordance with the law” requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus meet quality requirements: it must be accessible to the person concerned and foreseeable as to its effects (see Roman Zakharov v. Russia [GC], no. 47143/06, § 228, ECHR 2015). In the case of Roman Zakharov the Court has summarised the “quality of law” requirements in the context of secret surveillance as follows:

“229. The Court has held on several occasions that the reference to ‘foreseeability’ in the context of interception of communications cannot be the same as in many other fields. Foreseeability in the special context of secret measures of surveillance, such as the interception of communications, cannot mean that an individual should be able to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. However, especially where a power vested in the executive is exercised in secret, the risks of arbitrariness are evident. It is therefore essential to have clear, detailed rules on interception of telephone conversations, especially as the technology available for use is continually becoming more sophisticated. The domestic law must be sufficiently clear to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures (see Malone, cited above, § 67; Leander v. Sweden, 26 March 1987, § 51, Series A no. 116; Huvig v. France, 24 April 1990, § 29, Series A no. 176‑B; Valenzuela Contreras v. Spain, 30 July 1998, § 46, Reports of Judgments and Decisions 1998‑V; Rotaru, cited above, § 55; Weber and Saravia, cited above, § 93; and Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 75).

230. Moreover, since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the discretion granted to the executive or to a judge to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference (see, among other authorities, Malone, cited above, § 68; Leander, cited above, § 51; Huvig, cited above, § 29; and Weber and Saravia, cited above, § 94).

231. In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in law in order to avoid abuses of power: the nature of offences which may give rise to an interception order; a definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or destroyed (see Huvig, cited above, § 34; Amann v. Switzerland [GC], no. 27798/95, §§ 56-58, ECHR 2000‑II; Valenzuela Contreras, cited above, § 46; Prado Bugallo v. Spain, no. 58496/00, § 30, 18 February 2003; Weber and Saravia, cited above, § 95; and Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 76).

232. As to the question whether an interference was ‘necessary in a democratic society’ in pursuit of a legitimate aim, the Court has acknowledged that, when balancing the interest of the respondent State in protecting its national security through secret surveillance measures against the seriousness of the interference with an applicant’s right to respect for his or her private life, the national authorities enjoy a certain margin of appreciation in choosing the means for achieving the legitimate aim of protecting national security. However, this margin is subject to European supervision embracing both legislation and decisions applying it. In view of the risk that a system of secret surveillance set up to protect national security may undermine or even destroy democracy under the cloak of defending it, the Court must be satisfied that there are adequate and effective guarantees against abuse. The assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to authorise, carry out and supervise them, and the kind of remedy provided by the national law. The Court has to determine whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the ‘interference’ to what is ‘necessary in a democratic society’ (see Klass and Others, cited above, §§ 49, 50 and 59; Weber and Saravia, cited above, § 106; Kvasnica v. Slovakia, no. 72094/01, § 80, 9 June 2009; and Kennedy, cited above, §§ 153 and 154).”

42. In the case of Bykov v. Russia, which concerned interception of the applicant’s conversation by a radio transmitter hidden on his interlocutor’s body in the framework of a so-called “operative experiment”, the Court has found that the legal provisions governing “operative experiments” did not meet the Convention’s “quality of law” requirements (see Bykov, cited above, §§ 69-83).

43. The Court considers that this finding is applicable to the audio-visual surveillance of the applicant’s office for the following reasons. Firstly, both an “operative experiment” (“оперативный эксперимент”) examined in Bykov and the “surveillance” measures (“наблюдение”) in question in the present case are two types of operational-search measures listed in section 6 of the OSAA (see paragraph 14 above). Like the “operative experiment” in Bykov, the “surveillance” measures in the present case were not considered under domestic law to interfere with any of the two types of privacy expressly protected by the OSAA: privacy of postal, telegraphic and other communications transmitted by means of telecommunications networks or mail services; or privacy of the home. In particular, as explained by the Government, the applicant’s office was not considered to be his “home” within the meaning of the national law.

44. Moreover, like “operative experiments”, surveillance measures that do not involve interference with the privacy of protected types of communications or with the privacy of the home are not subject to the procedural safeguards described in section 8 of the OSAA, in particular the requirement for a prior judicial authorisation (see paragraph 17 above). Although the OSAA gives an indication as to the circumstances in which public authorities are empowered to resort to such surveillance measures (see paragraph 16 above), it does not provide for any other safeguards. The Government did not refer to any other provision in domestic law regulating the scope and duration of “surveillance” measures, the grounds required for ordering them, the procedures for supervising the ordering and implementation of such measures or the rules of use for various surveillance techniques or devices.

45. It follows that in the instant case, as in the Bykov case, the applicant enjoyed very few, if any, safeguards in the procedure by which the surveillance measures against him were ordered and implemented. In particular, the legal discretion of the authorities to order the “surveillance” was not subject to any conditions, and its scope and the manner in which it was exercised were not defined; no other specific safeguards were provided for. Given the absence of specific regulations providing safeguards, the Court is not satisfied that the possibility, provided for by Russian law, for the applicant to bring court proceedings seeking to declare the surveillance unlawful or to request the exclusion of its results as unlawfully obtained evidence met the “quality of law” requirements described above (see Bykov, cited above, § 80; see also, for the effectiveness of the available remedies, paragraphs 24 to 27 above).

46. The Court concludes that the covert surveillance measures against the applicant were not accompanied by adequate safeguards against various possible abuses. They were open to arbitrariness and were therefore inconsistent with the requirement of lawfulness. The interference with the applicant’s right to respect for his private life was not “in accordance with the law”, as required by Article 8 § 2 of the Convention. In the light of this conclusion, the Court is not required to determine whether the interference was “necessary in a democratic society” for one of the aims enumerated in paragraph 2 of Article 8.

47. Accordingly, there has been a violation of Article 8 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

48. The applicant complained that his conviction had been based on video recordings which had been obtained unlawfully. He relied on Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

49. The Government submitted that it was not the Court’s function to deal with errors of fact or of law allegedly committed by a national court. While Article 6 guaranteed the right to a fair hearing, it did not lay down any rules on the admissibility of evidence as such, which was therefore primarily a matter for regulation under national law. It was not the role of the Court to determine whether particular types of evidence – for example, unlawfully obtained evidence – might be admissible or, indeed, whether the applicant was guilty or not. The question which had to be answered was whether the proceedings as a whole, including the way in which the evidence was obtained, were fair.

50. The Government pointed out that the applicant’s conviction had been based on an ample body of evidence of which only part had been obtained through covert surveillance. It had been open to the applicant to challenge in adversarial proceedings the evidence obtained through the covert operation and he had availed himself of that possibility.

51. The applicant maintained his claims.

52. The Court has already found in several cases where the use of covert listening devices was not “in accordance with the law” and therefore in breach of Article 8 that the admission in evidence of information obtained thereby did not, in the circumstances of the cases, conflict with the requirements of fairness guaranteed by Article 6 § 1 (see Schenk v. Switzerland, 12 July 1988, §§ 45-49, Series A no. 140; Khan, cited above, §§ 34-40; P.G. and J.H. v. the United Kingdom, no. 44787/98, §§ 76-81, ECHR 2001‑IX; and Bykov, cited above, §§ 94-98). The Court has found, in particular, that it is not its role to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – were admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. In determining whether the proceedings as a whole were fair, regard must be had to whether the rights of the defence were respected. It must be examined in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy. While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see Bykov, cited above, §§ 89 and 90).

53. In the present case, the applicant was able to challenge the lawfulness and the authenticity of the evidence obtained as a result of the covert operation in the adversarial procedure before the trial court and in his grounds of appeal. His arguments were addressed by the courts and dismissed in reasoned decisions. The Court notes that the applicant made no complaints in relation to the procedure by which the courts reached their decision concerning the admissibility of the evidence.

54. The Court also attaches weight to the fact that the video recordings were not the only evidence on which the conviction was based; they were corroborated by other evidence (see, for a similar reasoning, Schenk, cited above, § 48, and Bykov, cited above, §§ 96-98).

55. In these circumstances, the Court finds that the use at the applicant’s trial of the evidence obtained through covert surveillance did not conflict with the requirements of fairness guaranteed by Article 6 § 1 of the Convention. The proceedings in the applicant’s case, considered as a whole, including the way in which the evidence was obtained, were fair.

56. In view of the above, the Court finds that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

57. Lastly, the Court has examined the other complaints submitted by the applicant and, having regard to all the material in its possession and in so far as the complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

58. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

59. The applicant claimed 10,000 euros (EUR) in respect of non‑pecuniary damage.

60. The Government submitted that the amount claimed was excessive.

61. The Court awards the applicant EUR 7,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

62. The applicant claimed 130,000 Russian roubles (about EUR 3,170) for his legal representation before the domestic courts and before the Court. He submitted a legal-fee agreement and the relevant invoices.

63. The Government submitted that the claim concerning the costs and expenses incurred before the domestic courts was manifestly ill‑founded because the reasonableness of the national authorities’ decision to charge a person of a criminal offence was not subject to review in the proceedings before the Court.

64. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 covering costs under all heads, plus any tax that may be chargeable to the applicant.

C. Default interest

65. The Court 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 the alleged breach of the applicant’s right to respect for his private life, home and correspondence admissible and the remainder of the application inadmissible;

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 applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 applicant’s claim for just satisfaction.

Done in English, and notified in writing on 7 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıHelena Jäderblom
Deputy RegistrarPresident

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