FOURTH SECTION
CASE OF PROKAYEVA AND OTHERS v. RUSSIA
(Applications nos. 13079/17 and 26 others –
see appended list)
JUDGMENT
STRASBOURG
23 November 2023
This judgment is final but it may be subject to editorial revision.
In the case of Prokayeva and Others v. Russia,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Branko Lubarda, President,
Armen Harutyunyan,
Ana Maria Guerra Martins, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 2 November 2023,
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 LAWJOINDER OF THE APPLICATIONS
5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.Jurisdiction
6. 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 Convention
7. 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.OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW
11. Some applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its well‑established case-law (see Idalov v. Russia [GC], no. 5826/03, §§ 103‑08 and 154-58, 22 May 2012, concerning conditions of transport of detainees and the lack of a speedy review of detention matters; Rozhkov v. Russia (no. 2), no. 38898/04, §§ 91-96, 31 January 2017, concerning forced attendance for questioning, and Dirdizov v. Russia, no. 41461/10, §§ 108-11, 27 November 2012, as regards excessive length of pre-trial detention).remaining complaints
12. Some applicants also complained that they had not been afforded an effective domestic remedy in respect of their grievances under Article 8, contrary to Article 13 of the Convention. Having regard to the above findings, the Court does not consider it necessary to deal separately with the applicants’ complaints under Article 13 of the Convention (see Kruglov, cited above, § 138).APPLICATION OF ARTICLE 41 OF THE CONVENTION
13. 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.”
14. 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.
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 under Article 8 of the Convention concerning the unlawful search and other complaints raised under the well-established case-law of the Court, as set out in the appended table, admissible, and finds that it is not necessary to deal separately with the applicants’ complaints under Article 13 of the Convention raised in connection to their Article 8 complaints;Holds that these applications disclose a breach of Article 8 of the Convention concerning the unlawful search;Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see the appended table); 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.
Done in English, and notified in writing on 23 November 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Viktoriya Maradudina Branko Lubarda
Acting Deputy Registrar President
APPENDIX
List of applications raising complaints under Article 8 § 1 of the Convention
(unlawful search)
No.
Application no.
Date of introduction
Applicant’s name
Year of birth/registration
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
Other complaints under well‑established case-law
Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant/household
(in euros)[1]
13079/17
31/01/2017
Olga Nikolayevna PROKAYEVA
1961
Pechenev Igor Viktorovich
Lipetsk
House search
22/09/2016,
Gryazy Town Court of the Lipetsk Region
23/09/2016, the Lipetsk Regional Court rejected the applicant’s complaint concerning the authorisation of the search on 18/11/2016
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 criminal case against the applicant was closed after the search had been conducted and brought no results
7,500
43826/17
07/06/2017
Natalya Dmitriyevna NAZARETS
1966
House search
14/12/2016, Lechinskiy District Court of Vladivostok
25/01/2017-26/01/2017. Primorye Regional Court rejected the applicant’s complaint on 27/03/2017. The cassation appeal before the Primorye Regional Court was dismissed on 28/04/2017.
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),
no relevant or sufficient reasons to justify the search: applicant not a suspect,
no evidence supporting the search authorisation,
no reasons given why any relevant objects or documents might be found during the search, particular circumstances: manner of the search
The search was carried out at night despite the absence of any urgency; the applicant was not a suspect / defendant in the criminal case; the search was conducted as part of a criminal case against the applicant’s son, whose official place of residence was not the applicant’s flat. The courts reasoned that the applicant’s flat was the defendant’s actual place of residence.
7,500
45890/17
13/06/2017
Nikolay Yuryevich BUGLAK
1962
Timofeyev Ivan Aleksandrovich
Chita
search under the Code of Criminal Procedure in the applicant’s flat
12/07/2013, Zheleznodorozhnyy District Court of Chita
12/07/2013, judicial review of the decision to issue a search warrant, Zabaykalskiy Regional Court, on 13/12/2016, final decision (appellate court)
no relevant or sufficient reasons to justify the search: no evidence supporting the search authorisation;
no reasons given why any relevant objects or documents might be found during the search, applicant was not a suspect
7,500
5518/18
16/01/2018
Yevgeniy Aleksandrovich SILACHEV
1990
Abdrashitov Elik Yevgenyevich
Orel
Home search
03/10/2016, Apastovskiy District Court of the Tatarstan Republic
30/09/2016, Supreme Court Tatarstan Republic rejected the appeal complaint on 05/09/2017
no relevant or sufficient reasons to justify the search: no reasonable suspicion as the basis for the search authorisation, no relevant or sufficient reasons to justify the search: applicant was 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 search was carried out early in the morning (between 5.15 a.m. to 6.20 a.m.), the applicant was not present during the search, his mother read and signed the relevant record. At the time of the search, the applicant was not officially a suspect. Subsequently the applicant was charged with theft (of cattle).
7,500
13664/18
12/03/2018
Vera Vladimirovna VOLKOVA
1967
Home search (lawyer’s home)
24/03/2017 Moskovskiy District Court of Nizhniy Novgorod
22/03/2017; appeal decision on the search warrant - 28/11/2017, Nizhniy Novgorod Regional Court; on 22/01/2018 the Moscovskiy District Court of Nizhniy Novgorod dismissed the applicant’s complaint under Article 125 of the Code of Criminal Procedure (CCrP) about the authorities’ unlawful actions during the search
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 is an attorney. The search was authorised against her husband who was suspected of committing large-scale fraud.
7,500
43563/18
29/10/2016
Tatyana Aleksandrovna PASHKINA
1953
Home search (lawyer’s home)
24/03/2016 Tsentralniy District Court of Sochi
25/03/2016, appeal against court’s authorisation (Krasnodar Regional Court 12/05/2016), cassation appeal (Krasnodar Regional Court, 29/09/2016)
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 evidence supporting the search authorisation, no reasons given why any relevant objects or documents might be found during the search
The application is a lawyer.
7,500
1720/19
24/12/2018
Konstantin Kazimirovich LUBNEVSKIY
1968
ZAO ROSSPETSKOMPLEKT
1900
search under the Operational-Search Activities Act (OSAA), business premises
04/07/2018, Head of Police Department in Krasnogorsk
06/07/2018
no adequate and sufficient safeguards against abuse: no judicial review of the search/search authorisation, no relevant or sufficient reasons to justify the search: applicant not a suspect
the operational search activity covered a search and seizure which could have been conducted only within the framework of the criminal proceedings; no criminal proceedings in respect of the applicants were instituted
7,500
1731/19
17/12/2018
Nadezhda Aleksandrovna ABASHIDZE
1982
search under Code of the Criminal Procedure, living premises (applicant’s flat)
15/05/2018, 18/05/2018, Sovetskiy District Court of Krasnodar
22/05/2018, challenge of the judicial authorisation of the search to no avail (10/07/2018 - the Krasnodar Regional Court as a court of appeal)
no relevant or sufficient reasons to justify the search: minor severity of the offence, 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, mother of a new-born child (born on 27/11/2017); according to the applicant, on 30/12/2017 the investigator agreed to question the applicant at her place of residence
Art. 5 (1) - unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis - The applicant was taken to the police station for her questioning and was kept there between 10 a.m. and 1.15 p.m. on 22/05/2018 in the absence of summons. No written record of the detention. The applicant challenged the lawfulness of the police actions to no avail under Art.125 CCrP with no success (final - the Krasnodar Regional Court, 07/08/2018).
9,750
2332/19
17/12/2018
Andrey Fedorovich PETROV
1975
Kiryanov Aleksandr Vladimirovich
Taganrog
inspection conducted by the Federal Security Service in the applicant’s house, car and land plot as an operative and search measure
18/10/2018, Leninskiy District Court in Rostov-on-Don
19/10/2018
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)
7,500
3828/19
09/01/2019
Aleksey Sergeyevich BZHEVSKIY
1984
search of the applicant’s home (the applicant resided in the flat under a lease agreement)
18/05/2018, Sovetskiy District Court of Krasnodar
On 11/07/2018 the Sovetskiy District Court of Krasnodar returned the applicant’s appeal without consideration on the merits. No procedural decision was taken by the court.
no relevant or sufficient reasons to justify the search: no evidence supporting the search authorisation, 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)
7,500
41757/19
26/05/2019
Irina Aleksandrovna YANOVITSKAYA
1983
Search of the applicant’s
flat in which she had an office
25/09/2018, Leninskiy District Court of Perm
On 27/11/2018 the Perm Regional Court dismissed the applicant’s appeal against the decision of 25/09/2018
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), no special safeguards for lawyers: no special instructions by a judge regarding privileged materials
The applicant is an attorney
7,500
44389/19
10/08/2019
Vitaliy Vladimirovich VAVILIN
1963
Brovchenko Sergey Vasilyevich
Moscow
a flat and a house, urgent search in the absence of judicial authorisation, as part of the criminal investigation against the applicant on the charges of embezzlement
14/11/2018, Investigator of Investigating Committee; authorised by the final decisions of the Moscow City Court of 11/02/2019 and 27/03/2019
31/11/2018; the final decisions recognising the lawfulness of the searches were taken by the Moscow City Court on 11/02/2019 and 27/03/2019.
no relevant or sufficient reasons to justify the search: no evidence supporting the search authorisation, 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)
7,500
20144/20
25/02/2020
Aleksey Viktorovich KARPENKO
1976
Ivanov Aleksey Valeryevich
Krasnodar
lawyer’s office
26/06/2019 investigator’s order for urgent search
26/06/2019,
28/06/2019 Oktyabrskiy District Court of Krasnodar;
05/09/2019 Krasnodar Regional Court
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
7,500
6519/21
28/12/2020
Tatyana Georgiyevna MARTYNOVA
1963
Volokh Valeriy Valeryevich
Moscow
search of the flat
16/07/2020, investigator, 17/06/2020 Khamovnicheskiy District Court of Moscow
16/07/2020, Moscow City Court on 21/09/2020
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), no relevant or sufficient reasons to justify the search: applicant not a suspect
7,500
25412/21
16/04/2021
Ilya Vasilyevich ARISHCHENKOV
1988
Artamonov Aleksandr Vasilyevich
Moscow
search of the flat
02/09/2020, investigator, 04/09/2020, Chertanovskiy District Court of Moscow
02/09/2020, Moscow City Court rejected the applicant’s appeal on 01/12/2020
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 is an individual entrepreneur, who provides legal services (no evidence of being a Bar member). The investigation concerns Art. 159 § 4 of the Criminal Code. The Chertanovskiy District Court declared the lawfulness of the search ex post facto.
7,500
32407/21
05/06/2021
Roman Konstantinovich KAMENEV
1979
Brester Aleksandr Aleksandrovich
Krasnoyarsk
search under the OSAA, the applicant’s flat
09/12/2020,
the Sovetskiy District Court of Krasnoyarsk
date of the search -10/12/2020. The applicant filed a cassation appeal against the decision of 09/12/2020, seeking the full review of the decision to issue a search warrant. On 17/02/2021 the 8th Cassation Court of General Jurisdiction upheld the decision of 09/12/2020.
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), no relevant or sufficient reasons to justify the search: no evidence supporting the search authorisation
7,500
32550/21
27/05/2021
Ilya Valeryevich KUPTSOV
1989
Kashirin Roman Mikhaylovich
Pskov
search of the flat
24/02/2021, Investigator of the Novgorod Region Department of the Federal Security Service, 02/03/2021 Novgorodskiy District Court of the Novgorod Region
25/02/2021, domestic courts declared ex post facto the lawfulness of the search. Novgorod Regional Court, 15/04/2021.
no adequate and sufficient safeguards against abuse: lawyer not allowed to assist the applicant during the search, broad terms/wide content and scope of the search warrant (objects and documents not specific enough to restrict police’s discretion)
7,500
49653/21
18/09/2021
Gleb Sergeyevich BOBARIKO
1991
house
Decision of the investigator of 20/08/2020
20/08/2020;
The applicant appealed against the decision of Presnenskiy District Court of Moscow of 24/08/2020, contesting the lawfulness of the search. Moscow City Court dismissed his appeal on 14/04/2021
particular circumstances: manner of the search, 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), no adequate and sufficient safeguards against abuse: lawyer not allowed to assist the applicant during the search, no relevant or sufficient reasons to justify the search: no reasons given why any relevant objects or documents might be found during the search
The criminal case against the applicant was instituted on 06/12/2019 on suspicion of fraud. The search was conducted at night.
Art. 5 (3) - excessive length of pre-trial detention - from 21/08/2020 to 21/07/2021, Presnenskiy District Court of Moscow, the Moscow City Court, fragility of the reasons employed to extend detention; lack of proper examination of alternative measures;
Art. 5 (4) - excessive length of judicial review of detention - the appeal of 21/02/2021 against the detention order was examined on 22/03/2021
9,750
50368/21
22/09/2021
Giya Enverovich KAKABADZE
1960
Zubarev Dmitriy Vladimirovich
Vladivostok
search of the flat
court search warrant of 05/02/2021 issued by the Pervorechenskiy District Court of Vladivostok
06/02/2021; the Primorye Regional Court, 23/03/2021
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), no relevant or sufficient reasons to justify the search: applicant not a suspect
7,500
50369/21
22/09/2021
(3 applicants)
Household
Maksim Aleksandrovich KHOZYAYKIN
1986
Kseniya Nikolayevna KHOZYAYKINA
1985
Kira Maksimovna KHOZYAYKINA
2009
Zubarev Dmitriy Vladimirovich
Vladivostok
search of the flat
05/02/2021 Pervorechenskiy District Court of Vladivostok
06/02/2021; Primorye Regional Court on 23/03/2021
no relevant or sufficient reasons to justify the search: no evidence supporting the search authorisation, 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 applicants are a human rights defender and his wife and daughter. Their flat was searched in the course of the criminal proceedings against participants of “Otpuskay” manifestations.
7,500
52582/21
11/10/2021
Elik Yevgenyevich ABDRASHITOV
1978
House search
16/07/2019, investigator for particularly important criminal cases of the Investigation Committee of the Republic of Tatarstan
16/07/2019, civil compensation claim (final - Supreme Court judgment of 21/02/2022; RUB 50,000 awarded
no special safeguards for lawyers: no presence of independent observers, no special safeguards for lawyers: search conducted by the investigator without the court’s authorisation in circumstances that admitted of no delay
On 19/07/2019 the Sovetskiy District Court of Kazan, reviewing the search order following the investigator’s notification, declared the search unlawful.
Art. 3 - inadequate conditions of detention during transport - train, van; 20/04/2021-11/05/2021; 0.26 sq. m of personal space
8,500
53917/21
18/10/2021
and
54811/21
18/10/2021
and
56808/21
18/10/2021
Household
Liliya Yuryevna TROTSENKO
1961
Yuriy Petrovich TROTSENKO
1961
Yekaterina Yevgenyevna TROTSENKO
1983
Kiryanov Aleksandr Vladimirovich
Taganrog
House search; the applicants are family
No court authorisation; the Operational-Search Activities Act
24/08/2021; the applicants were not provided with a copy of the house search authorisation
no relevant or sufficient reasons to justify the search: applicant not a suspect, no adequate and sufficient safeguards against abuse: no judicial review of the search/search authorisation
7,500
55440/21
26/10/2021
Yuliya Valeryevna KULIKOVA
1977
Kozyrev Denis Yevgenyevich
Lipovitsy
Search under the Code of the Criminal Procedure, search of offices
14/04/2021, Investigator of the Volokolamsk Town Circuit, 26/04/2021 Volokolamsk Town Court of the Moscow Region
14/04/2021;
the applicant complained to the domestic courts under Article 125 of the CCrP. Final - Moscow Regional Court, 24/06/2021
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), no relevant or sufficient reasons to justify the search: applicant not a suspect, no relevant or sufficient reasons to justify the search: no reasons given why any relevant objects or documents might be found during the search
7,500
57275/21
17/11/2021
Yevgeniya Eduardovna LITVINOVA
1960
Cherkasov Vitaliy Viktorovich
St Petersburg
search of the flat
31/01/2021, investigator
31/01/2021;
Kuybyshevskiy District Court of St Petersburg, 02/02/2021,
St Petersburg City Court, 28/05/2021
no relevant or sufficient reasons to justify the search: applicant not a suspect, no reasons given why any relevant objects or documents might be found during the search, 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)
7,500
58638/21
10/11/2021
Yelena Anatolyevna GRECHINA
1975
Matyukhin Denis Anatolyevich
Taganrog
search of the flat
21/07/2021 Taganrog Town Court
06/08/2021, the decision of 21/07/2021 was not amenable to appeal
no relevant or sufficient reasons to justify the search: no evidence supporting the search authorisation, 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)
7,500
[1] Plus any tax that may be chargeable to the applicants.
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