Communicated on 10 February 2017
FIRST SECTION
Application no. 37981/12
Amalya GHARIBYAN
against Armenia
lodged on 16 June 2012
STATEMENT OF FACTS
The applicant, Ms Amalya Gharibyan, is an Armenian national who was born in 1980 and is currently detained in Abovyan Prison. She is represented before the Court by Mr T. Safaryan, a lawyer practising in Yerevan.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 22 April 2011 the applicant, who was a postal service employee at the time, was apprehended by the police on suspicion of drug dealing. A search found her to be in possession of a large quantity of buprenorphine. It appears that the applicant’s mobile phone was seized on that occasion.
On the same date the applicant was taken to her apartment by police officers, who proceeded to search the apartment. In the course of the search the police seized six pills. A “record on seizing pills resembling subutex narcotics” was drawn up stating, in particular, that the applicant had handed over the pills from the place indicated by the police officers upon their oral request.
On 23 April 2011 the police instituted criminal proceedings against the applicant and two other persons for drug possession and supply. According to the relevant decision, the applicant was suspected of being involved in dealing in drugs sent via post from France by the relatives of one of her co‑accused.
On the same date at 6.50 p.m. the applicant was formally arrested.
On the same date the Kotayk Regional Court granted the investigator’s request to carry out a search of the applicant’s apartment and adjacent premises.
On the same date the police searched the applicant’s apartment and discovered AMD 100,000 (approximately EUR 183) in the applicant’s bag.
On 26 April 2011 the applicant was charged with drug dealing.
On 23 June 2011 the investigator dealing with the applicant’s case ordered a forensic examination of the applicant’s mobile phone in order to retrieve photographs, recordings, messages, contact details, calendar and other notes stored in it as well as to determine whether any files had been deleted from the memory of the device and, if so, recover those if possible.
On 20 July 2011 the forensic digital expert delivered her report, which included the texts of the applicant’s personal messages, the list of her contacts stored in the phone book, information concerning her recent phone calls, and so on.
It appears that in the course of the investigation the applicant’s sister had had a video conversation with the supplier of the drugs, residing in France, from the portable computer kept in their apartment.
On 8 September 2011 the investigator seized the computer from the applicant’s apartment.
By a decision of 9 September 2011 the investigator ordered a forensic examination of the seized portable computer that had allegedly been used by the applicant to keep in contact with the drug supplier from France.
On 27 September 2011 the investigator asked the national postal operator to provide him with data concerning the applicant’s money transfers between 1 December 2010 and 25 April 2011.
By letter of 29 September 2011 the national postal operator informed the police that the applicant had transferred money to Strasbourg, France once during the indicated time-period and provided a copy of the relevant transfer receipt.
On 6 October 2011 the investigator sent another request to the national postal operator, asking to be provided with data concerning the applicant’s money transfers between 1 January 2009 and 25 April 2011.
On the same date the investigator asked the national postal operator for information concerning the postal packages received by the applicant between 1 January 2009 and 1 June 2011, including the names of the senders, as well as the dates and places of posting.
By letter of 7 October 2011 the investigator was provided with the requested information, which appears to have reiterated the information given in the letter of 29 September 2011.
On 18 October 2011 the national postal operator informed the police that the applicant had received four packages via registered post during the indicated period.
On 26 October 2011 the forensic digital expert who had carried out the forensic digital examination of the applicant’s computer delivered his report, which contained retrieved information concerning the history of the applicant’s web calls and correspondence, including the content of the messages.
It appears that in December 2011 the investigation was completed and the applicant was allowed access to the case file.
On 17 January 2012 the applicant was provided with photocopies of the case file materials.
On an unspecified date the case was transferred to Kotayk Regional Court for examination on the merits.
On 9 July 2012 the applicant’s lawyer applied to the Minister of Justice with a request to provide an official clarification of Article 14 of the Criminal Code. He argued, in particular, that the practice of law‑enforcement authorities whereby they would only seek a judicial warrant authorising the surveillance of correspondence, telephone conversations, postal, telegraphic and other communications but did not do so in case of retrieval of personal data, including deleted information, from seized mobile and computer devices by means of forensic digital examination, was in breach of the right to secrecy of correspondence, telephone conversations, postal, telegraphic and other communications.
On 17 July 2012 the applicant filed a report with the Prosecutor General and the Head of the Special Investigative Service, requesting them to institute criminal proceedings on account of, inter alia, the unlawful interference with her right to respect for her private and family life in the course of the criminal proceedings against her.
At the hearing of 27 July 2012 the applicant applied to have the following evidence declared inadmissible as having been obtained in an unlawful manner: the expert report of 20 July 2011, the expert report of 26 October 2011 and the letters of the national postal operator of 29 September, 7 and 18 October 2011. It appears that the trial court decided to postpone the consideration of this request and address it during the deliberations.
On 31 July 2012 the Ministry of Justice replied to the applicant’s lawyer that it was not authorised to give an official clarification of the relevant legal provisions since it was not the executive which implemented those provisions. At the same time, the Ministry expressed its opinion that the right to secrecy of correspondence, telephone conversations, postal, telegraphic and other communications could be limited only by a judicial warrant; the investigative authority could not seize a person’s correspondence, including any data contained therein, without a court decision.
On 5 October 2012 the Regional Court convicted the applicant as charged and sentenced her to eight years’ imprisonment. As regards the applicant’s request of 27 July 2012, it stated the following:
“The court, having considered [the applicant’s] application seeking to have the evidence declared inadmissible, finds that it is well-founded and emerges from the legal requirement of prevention of unnecessary restriction of the right to respect for private life, correspondence and telephone conversations guaranteed by ... [the Convention] given that such restrictions may be carried out only upon authorisation of a competent court which clearly has not been done in the present case. Therefore the court declares the following evidence inadmissible:
a. [the expert report] of 20 July 2011,
b. [the expert report] of 26 October 2011,
c. the letters of [the national postal operator] of 29 September, 7 and 18 October 2011...
When establishing the inadmissibility of the above evidence ... the court relies on the person’s right to respect for private and family life, as well as the right to secrecy of correspondence, telephone conversations, postal, telegraphic and other communications guaranteed by ... the Constitution and Article 8 of [the Convention]...
... having established the inadmissibility of the above evidence, the court notes that this evidence, which has been examined during the trial, is relevant for the criminal case and includes such circumstances which to some extent establish the defendants’ involvement in the offences with which they are charged. Consequently, the court must accept those documents as relevant for the case and assess them apart from [the rest of the evidence].
Besides, the court notes that the weight of the mentioned evidence in the present case is not such as to lead the court to the conclusion that the defendants have not committed the [offences] with which they are charged in the circumstances where the court has established its inadmissibility...”
The applicant lodged an appeal arguing, inter alia, that, having established the inadmissibility of the evidence obtained in breach of her right to respect for her private life and correspondence, the trial court had nevertheless relied on it as a basis for her conviction.
On 20 December 2012 the Criminal Court of Appeal fully upheld the trial court’s judgment and reiterated its findings as regards the issue of use of evidence declared inadmissible.
According to the applicant, her subsequent appeal on points of law was declared inadmissible for lack of merit by the Court of Cassation.
B. Relevant domestic law
The relevant provisions of the Code of Criminal Procedure, as applicable at the material time, provided:
Article 14: Secrecy of correspondence, telephone conversations, postal, telegraphic and other communications
“...
2. Surveillance of correspondence, postal, telegraphic and other communications, interception of telephone conversations can be carried out only on the basis of a judicial warrant in the manner prescribed by the law.”
Article 239: Surveillance of correspondence, postal, telegraphic and other communications
“1. If there are sufficient grounds to believe that information, which may have evidentiary value for the case, may be contained in the correspondence, postal, telegraphic and other communications (hereafter “correspondence”) sent by or received by the suspect or the accused, the investigator may make a reasoned decision containing an application to the court to seek surveillance of the correspondence of the mentioned persons...”
Article 241: Interception of telephone conversations
“1. If there are sufficient grounds to believe that information, which may be important for the case, may be contained in conversations carried out by telephone or other means of communication by the suspect, the accused and other persons aware of crimes, the interception and recording of such conversations may be authorised by a judicial warrant.
2. The investigator shall make a reasoned decision on initiating an application to the court about the need to intercept and record conversations. [The decision] shall indicate the criminal case and grounds, on which the appropriate investigative measure shall be carried out, the name and family name of persons whose conversations are to be intercepted, the time-limit for surveillance, and the agency entrusted with the implementation of the technical aspects of the interception and recording. The decision shall be submitted to a court...”
Article 279: Investigative measures carried out by a judicial warrant
“... investigative measures involving restriction of secrecy of correspondence ... shall be carried out on the basis of a judicial warrant.”
Article 281: Operative and search activities carried out by a judicial warrant
“1. Operative and search activities involving restriction of the citizens’ right to secrecy of correspondence, telephone conversations, postal, telegraphic and other communications shall be carried out on the basis of a judicial warrant.”
COMPLAINTS
The applicant complains that the retrieval of information from her seized mobile phone and personal computer without a judicial warrant was in breach of the requirements of Article 8 of the Convention. She further complains under the same provision that the investigative authority obtained information concerning her postal deliveries and money transfers without a judicial warrant.
The applicant complains under Article 13 of the Convention that she did not have an effective remedy for a breach of her rights under Article 8 of the Convention.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicant’s right to respect for her private life and correspondence, guaranteed by Article 8 of the Convention?
2. Did the applicant have at her disposal an effective domestic remedy for her complaints under Article 8, as required by Article 13 of the Convention?
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