THIRD SECTION
DECISION
Application no. 21234/09
Marina Aleksandrovna DUBINSKAYA and Petr Viktorovich DUBINSKIY
against Russia
The European Court of Human Rights (Third Section), sitting on 3 December 2019 as a Committee composed of:
Georgios A. Serghides, President,
Erik Wennerström,
Lorraine Schembri Orland, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 16 February 2009,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Ms Marina Aleksandrovna Dubinskaya and Mr Petr Viktorovich Dubinskiy, are Russian nationals, who were born in 1977 and 1952 respectively and live in Velikiye Luki, the Pskov Region. Their application was lodged on 16 February 2009. They were represented before the Court by Mr D.Y. Kozyrev, a lawyer practising in Velikiye Luki, the Pskov Region.
2. The Russian Government (“the Government”) were initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 28 March 2008 a criminal investigation into a car theft was opened. Police arrested D. as a suspect. On the same date police searched the flat where D. lived with his wife, the first applicant. Police also searched another flat which belonged to D., but where his father, the second applicant, resided. They further searched a garage rented and used as a workplace by the second applicant who was a car mechanic. On 31 March 2008 the Opochetskiy District Court of the Pskov Region found the searches lawful. The applicants did not appeal against that court judgment.
5. On 3 April 2008 the Dedovicheskiy District Court of the Pskov Region authorised the investigator to search the flats of the two applicants for a second time. The District Court noted that a criminal investigation had been opened into a car theft and two people, T. and D., had been arrested and charged on that account. The District Court considered that “based on documents submitted to it” it was possible to authorise the search of D.’s flats “to find material evidence relevant to the case and confirming the guilt of D. in the theft of the car”.
6. On 4 April 2008 police performed the searches.
7. The applicants did not appeal against the court search warrants of 3 April 2008.
8. The applicants complained under Article 125 of the Code of Criminal Procedure of the Russian Federation (“CCrP”) that there had been no sufficient grounds for the searches on 28 March and 4 April 2008. On 9 July 2008 the Dedovicheskiy District Court of the Pskov Region rejected their complaints. It noted first that the lawfulness of the searches had already been confirmed by the national courts. The District Court further examined the manner of the performance of the searches and held that they had been carried out in accordance with the requirements of the criminal procedure.
9. On 13 August 2008 the Pskov Regional Court upheld the judgments on appeal. Copies of the full appeal decisions were sent to the applicants on 18 August 2008.
COMPLAINTS
10. The applicants complained about searches of their homes and seizure of personal belongings and lack of effective remedies for the above grievances invoking Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention and under Article 13 of the Convention in conjunction with those two provisions.
THE LAW
11. The Court has previously found that the scope of judicial review under Article 125 of the CCrP was limited to reviewing the actions of State officials. That is, when a judge examined a complaint about an investigative measure (such as a search) under Article 125 of the CCrP, he or she established whether or not the investigating authorities had carried out that investigative measure in a manner compatible with the applicable legal requirements and whether they had abided by the terms of the judicial authorisation. However, the review under Article 125 of the CCrP did not touch upon the legal and factual grounds for the underlying judicial authorisation of the investigative measure, that is whether there had been relevant and sufficient reasons for giving that judicial authorisation and whether it was compatible with the legal requirements (see, for instance, Avanesyan v. Russia, no. 41152/06, §§ 31-33, 18 September 2014, in respect of searches, and Zubkov and Others v. Russia, nos. 29431/05 and 2 others, §§ 94-97, 7 November 2017, in respect of surveillance activities). Even if a judge had found some irregularities in the investigating authorities’ actions, this would not have affected the validity of the underlying judicial authorisation. Therefore, the Court has concluded that as under Article 125 of the CCrP the national courts could not examine the legal and factual grounds for the issue of a search warrant, they could not provide appropriate relief in respect of complaints about the underlying judicial authorisation.
12. In the present case the applicants did not appeal against the court judgments of 31 March and 3 April 2008 confirming the lawfulness of the searches. Instead, they chose to complain about lack of grounds for the searches by means of complaints under Article 125 of the CCrP. As noted above, judicial review under Article 125 of the CCrP is limited to the review of the manner of the performance of an investigative measure and does not touch upon the legal and factual grounds for the investigative measure. Thus, the national courts did not and could not examine the grounds for the searches and, consequently, their lawfulness within the framework of Article 125 of the CCrP review. This remedy, therefore, was not effective in respect of the applicants’ complaints about the lawfulness of the searches and they should have been aware about it. Thus, it cannot be taken into account for the six-month period calculation.
13. Turning to the court judgments on the lawfulness of the searches of 31 March and 3 April 2008 the Court notes that the applicants did not appeal against them. The applicants did not explain why they had not done so. The Court has not been presented with any evidence to demonstrate that the appeal complaint was unavailable to the applicants for some reason, for instance, because they had received copies of the judgments of 31 March and 3 April 2008 belatedly and the time-limit for filing the appeal had expired. Further, if the latter were the case, there is no evidence that the applicants requested to restore such a time-limit. Finally, even if it may be assumed that the appeal complaint was unavailable to the applicants for a valid reason, then the complaint about the violations of Article 8 was lodged outside of the six-month period since the moment of the alleged violation of the applicants’ rights, whether by the searches themselves or by the judgments on their lawfulness.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 16 January 2020.
Stephen PhillipsGeorgios A. Serghides
RegistrarPresident
Full & Egal Universal Law Academy