THIRD SECTION
CASE OF DVIGUN AND OVCHARENKO v. RUSSIA
(Applications nos. 49238/12 and 1976/19)
JUDGMENT
STRASBOURG
6 February 2025
This judgment is final but it may be subject to editorial revision.
In the case of Dvigun and Ovcharenko v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Diana Kovatcheva, President,
Úna Ní Raifeartaigh,
Mateja Đurović, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 16 January 2025,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.
2. The Russian Government (“the Government”) were given notice of the applications.
THE FACTS
3. The list of applicants and the relevant details of the applications are set out in the appended table.
4. The applicants complained of the unlawful search. Some applicants also raised other complaints under the provisions of the Convention.
THE LAW
JOINDER OF THE APPLICATIONS5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
Jurisdiction6. The Court observes that the facts giving rise to the alleged violations of the Convention occurred prior to 16 September 2022, the date on which the Russian Federation ceased to be a party to the Convention. The Court therefore decides that it has jurisdiction to examine the present applications (see Fedotova and Others v. Russia [GC], nos. 40792/10 and 2 others, §§ 68‑73, 17 January 2023).
ALLEGED VIOLATION OF ARTICLE 8 of the Convention7. The applicants complained principally of the unlawful search. They relied, expressly or in substance, on Article 8 of the Convention.
8. In the leading cases concerning searches of the applicants’ homes (see Misan v. Russia, no. 4261/04, 2 October 2014 and Kruglov and Others v. Russia, nos. 11264/04 and 15 others, 4 February 2020), the Court already found a violation in respect of issues similar to those in the present case.
9. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the searches were carried out without relevant and sufficient grounds and in the absence of safeguards that would confine their impact to reasonable bounds.
10. These complaints are therefore admissible and disclose a breach of Article 8 of the Convention.
REMAINING COMPLAINTS11. Mr Ovcharenko (application no. 1976/19) also raised other complaints under Article 1 of Protocol No. 1.
12. The Court has examined the complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.
It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION13. Regard being had to the documents in its possession and to its case‑law (see, in particular, Misan, cited above, § 70), the Court considers it reasonable to award the sums indicated in the appended table and dismisses the remainder of the applicants’ claims for just satisfaction.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Decides to join the applications;Holds that it has jurisdiction to deal with these applications as they relate to facts that took place before 16 September 2022;Declares the complaints concerning the unlawful search admissible and the remainder of application no. 1976/19 inadmissible;Holds that these applications disclose a breach of Article 8 of the Convention concerning the unlawful search; Holds(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(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.
Dismisses the remainder of the applicants’ claims for just satisfaction.Done in English, and notified in writing on 6 February 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Viktoriya Maradudina Diana Kovatcheva
Acting Deputy Registrar President
APPENDIX
List of applications raising complaints under Article 8 of the Convention
(unlawful search)
No.
Application no.
Date of introduction
Applicant’s name
Year of birth
Representative’s name and location
Type of search
Premises
Date of the search authorisation
Name of issuing authority
Date of the search
Means of exhaustion
Specific defects
Other relevant information
Amount awarded for pecuniary and non‑pecuniary damage per applicant and costs and expenses
(in euros)[1]
49238/12
10/07/2012
Pavel Sergeyevich DVIGUN
1980
Searches in the applicant’s office and flat
16/11/2011 Abakan Town Court
10/02/2012 Abakan Town Court (in respect of the second search of the applicant’s office and the search of his flat)
24/11/2011,
Supreme Court of Khakassia Republic
16/01/2012
14/02/2012,
Supreme Court of Khakassia Republic 30/03/2012
no special safeguards for lawyers: no special instructions by a judge regarding privileged materials, no adequate and sufficient safeguards against abuse: broad terms/wide content and scope of the search warrant (objects and documents not specific enough to restrict police’s discretion)
The first search in the applicant’s office was conducted within the framework of the criminal proceedings against him on the charge of having disclosed State secrets. The applicant, a practising attorney at the relevant time, represented D., a former civil servant, in an employment dispute, and took a photograph of classified materials contained in the case file. Subsequently, he lodged another claim on D.’s behalf and attached the photo to the statement of the claim. The second search of the applicant’s office and the search of the flat were conducted within the framework of the criminal proceedings against his client D. (charged with fraud)
7,500,
in respect of non-pecuniary damage
1976/19
20/12/2018
Sergey Aleksandrovich OVCHARENKO
1970
Moskalenko Karinna Akopovna
Strasbourg
Search in the applicant’s flat (also used by the applicant as his secondary office)
19/09/2017
Tverskoy District Court of Moscow
31/10/2017;
Moscow City Court 20/06/2018
no special safeguards for lawyers: no special instructions by a judge regarding privileged materials, no relevant or sufficient reasons to justify the search: applicant not a suspect, no adequate and sufficient safeguards against abuse: broad terms/wide content and scope of the search warrant (objects and documents not specific enough to restrict police’s discretion)
The applicant, an attorney at the relevant time, was the owner of the flat where the search was conducted. The applicant used the flat as a secondary office during his visits to Khabarovsk. According to the authorities, D., the applicant’s client and a defendant in a criminal case, resided in the flat at the relevant time. The search was authorised within the framework of the criminal proceedings against her.
7,500 in respect of non-pecuniary damage;
370 in respect of costs and expenses incurred in the proceedings before the Court
[1] Plus any tax that may be chargeable to the applicants.