THIRD SECTION
DECISION
Application no. 3882/21
Frédéric Yves Michel NOËL
against Estonia
The European Court of Human Rights (Third Section), sitting on 17 September 2024 as a Committee composed of:
Jolien Schukking, President,
Peeter Roosma,
Diana Kovatcheva, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 3882/21) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12 January 2021 by a French national, Mr Frédéric Yves Michel Noël (“the applicant”), who was born in 1973, lives in Montenegro and was represented by Mr M. Greinoman, a lawyer practising in Tallinn;
the decision to give notice of the complaint concerning the search of the applicant’s home to the Estonian Government (“the Government”), represented by their Agent, Mr Tim Kolk, Representative of Estonia to the European Court of Human Rights, and to declare inadmissible the remainder of the application;
that the French Government were informed of their right to intervene under Article 36 § 1 of the Convention and did not exercise that right;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns the manner in which a search of the applicant’s home was authorised by the prosecutor and only retrospectively approved by a judge by way of endorsement.
2. The applicant was suspected of harassing pursuit by way of creating websites containing personal and demeaning information and photos about certain other persons and of distributing those websites via various email addresses. He was also suspected of having sent an email, in the name of his former co-habitant, to the Tax and Customs Board, indicating that the former co-habitant’s husband might have engaged in tax fraud.
3. In the context of criminal proceedings against the applicant, on 9 June 2020 the prosecutor authorised a search of his home. The search warrant described the factual and evidentiary basis of the offence the applicant was suspected of (referring to the victim’s statements, specific websites and emails and their content). Noting that the suspected offence had been committed by using information technology facilities, the prosecutor indicated that the applicant’s data carriers could contain further digital evidence relevant to the suspicion. She noted the risk of disappearance of the evidence or its deletion either by the suspect or by someone else. Against that background the prosecutor authorised a search of the applicant’s home. The search warrant included a reference to its legal basis. It specified that the search included the living quarters of the applicant’s home, its auxiliary rooms and storage spaces and computer systems in the applicant’s possession. The objects to be searched were electronic devices, data carriers and other objects which could have referred to various social media accounts and passwords. It also included potential evidence contained in computer systems as well as data that was available through computer systems used by the applicant. The warrant indicated that it was subject to appeal in the context of proceedings for appealing against investigative activities (uurimiskaebemenetlus).
4. The applicant was arrested on 10 June 2020. A search of his home was carried out on the same day. Several items, such as mobile phones, hard drives, desktop computers and laptops, were seized. An interpreter was present during the arrest and the search. The applicant was not given a copy of the search warrant.
5. On 11 June 2020 a preliminary investigation judge, who had access to the prosecutor’s search warrant, authorised the search by way of endorsement. The judge’s authorisation – which stated “to declare the search permissible” – was inserted in the “resolution” section of a computer programme used for signing documents digitally.
6. In subsequent proceedings for appealing against investigative activities – under sections 228-231 of the CCrP – the applicant asked for the search warrant to be annulled and the search to be declared unlawful.
7. The Office of the Prosecutor General dismissed the applicant’s claim. Its decision contained a summary description of the contents of the search warrant (the offence of which the applicant was suspected, the material on which the suspicion was based, reasons for the search and what was being searched).
8. In his appeal to the Harju County Court the applicant argued that the search of his home had been unlawful for the reason that the domestic judge had merely endorsed the search warrant but had not conducted an effective review of the lawfulness and necessity of the search. In addition, he considered that the search warrant had not been sufficiently reasoned and that the search had been carried out for certain ulterior motives (in order to discourage him from pursuing another criminal case). He also complained about not having been issued with a copy of the search warrant.
9. On 28 August 2020 the Harju County Court dismissed the applicant’s appeal, noting that the search had taken place in accordance with the domestic law and on the basis of a sufficiently reasoned search warrant issued by a prosecutor. The search warrant had been subject to ex post judicial control. The Harju County Court noted, referring to the Court’s case-law, that the Convention did not necessarily require searches to be subjected to ex ante judicial control. The court also found that under domestic law there was no obligation to issue the applicant with a copy of the search warrant during pre‑trial proceedings. The warrant had been introduced to him and a summary of its contents had been made available to him. The applicant had managed to lodge appeals against the warrant. The court refuted as unfounded the applicant’s claim that the search had served some ulterior motives not linked to the proceedings at hand. Harju County Court’s decision was not amenable to appeal.
10. The criminal proceedings against the applicant were terminated on 21 December 2022.
11. The applicant complains that the manner in which the search was authorised by the prosecutor and was only retrospectively approved by a preliminary investigation judge by way of endorsement violated his rights under Article 8.
THE COURT’S ASSESSMENT
Alleged violation of Article 8 of the Convention
12. The parties do not dispute that the search of the applicant’s home constituted an interference with his right to respect for his home. Nor is there any dispute about the interference having had a sufficiently accessible and foreseeable legal basis in domestic law, and that this search served legitimate aims of preventing crime and protecting the rights and freedoms of others.
13. The applicant’s complaint focuses on the issue of whether domestic law – concerning how the search was authorised and ex post facto subjected to judicial review – provided appropriate and sufficient safeguards to protect him against arbitrary interference with his Article 8 rights.
14. The general principles concerning adequate safeguards against arbitrariness in the context of searches and seizures have been summarised, among other cases, in Delta Pekárny a.s. v. the Czech Republic, no. 97/11, §§ 83 and 87, 2 October 2014, and Brazzi v. Italy, no. 57278/11, §§ 41 and 44, 27 September 2018.
15. Section 91(3) of the Code of Criminal Procedure (CCrP, kriminaalmenetluse seadustik) provides that the prosecutor is empowered to authorise searches in respect of certain list of offences, including harassing pursuit. Under section 91(7) the search warrant is to be introduced to the person whose premises are being searched.
16. A search under a prosecutor’s warrant is subject to ex post facto judicial review by a preliminary investigation judge, who must be notified on the first working day following its commencement (Article 91 § 6 of the CCrP). The judge may decide to declare the search permissible (tunnistada läbiotsimine lubatavaks) or refuse to authorise it. The judge’s ruling may take the form of a fully reasoned order or an endorsement (see Särgava v. Estonia, no. 698/19, §§ 31, 16 November 2021). In this connection, the Government provided examples of cases in which preliminary investigation judges conducting an ex post facto review refused to authorise a search by issuing an endorsement.
17. In the present case the prosecutor issued a reasoned search warrant, specifying the offence of which the applicant was suspected and describing the events and evidence on which that suspicion was based. The warrant was individualised and sufficiently precise as to the place to be searched and the items sought. The offence of which the applicant was suspected fell within the category of offences for which the prosecutor was authorised to issue a search warrant. His argument that the prosecutor had had enough time to seek prior judicial authorisation is irrelevant as, under domestic law, a prosecutor was not required to obtain prior authorisation from a judge for such a search.
18. It has not been disputed that the prosecutor notified the judge of the search on the first working day following its commencement. The judge, having been able to review the search warrant which described the suspicion against the applicant and gave specific examples and material on which this suspicion was based, declared the search permissible by issuing an endorsement. Given the content of the search warrant, and even if the preliminary investigation judge did not have the entire criminal investigation file before him (as claimed by the applicant), the Court considers that he had sufficient information to consider that there was a reasonable suspicion against the applicant. Indeed, as pointed out by the Government, the standard for establishing reasonable suspicion in the context of authorising or approving procedural measures during a pre-trial investigation is not as high as the standard of proof for convicting someone.
19. The Court takes note of the examples provided by the Government of cases in which preliminary investigation judges refused to declare searches permissible as part of an ex post facto review. It has no reason to doubt their further explanation that such decisions have the practical effect of rendering the evidence obtained through the search inadmissible. The applicant did not argue to the contrary.
20. Subsequently, the applicant could and did lodge a complaint with a court in the context of proceedings for appealing against investigative activities, raising arguments about the fact that judicial approval was obtained only ex post facto, the allegedly inadequate reasoning of the search warrant and the alleged ulterior motives for which the search had been conducted. The Harju County Court responded to his arguments in a thorough and reasoned manner and eventually dismissed his claim (see paragraphs 8-9 above).
21. In that connection, the Court takes note of the fact that a copy of the search warrant was not available to the applicant at the time he lodged his above-mentioned claims. It appears that the applicant was not provided with any reasons for the impossibility to obtain a copy of the warrant other than the Harju County Court noting that issuing such a copy was not provided by law and that the suspect’s access to the criminal investigation file was limited as compared to trial proceedings.
22. Notwithstanding the above issues the Court finds that in the circumstances of the case at hand the applicant was able to raise his arguments effectively before the domestic authorities, including the Harju County Court. Some of the applicant’s arguments (such as those concerning the prosecutor’s warrant being subject to only ex post facto judicial review and the supposed ulterior motives of the search) could be presented without seeing the warrant itself. Admittedly, the claim about the warrant not having been sufficiently reasoned could be difficult to substantiate without having the warrant at hand. However, the Court notes that in the present case the applicant was nevertheless capable of raising this argument effectively in the domestic proceedings. First, the content of the warrant was introduced to him during the arrest directly preceding the search (the Government’s argument which the applicant does not contest). Secondly, the decision of the Office of the Prosecutor General contained a summary description of the contents of the search warrant (see paragraph 7 above). Thirdly, the Court also takes cognisance of the fact that in his appeal to the Office of the Prosecutor General the applicant referred to particular factual elements contained in the search warrant when arguing that there could not have been a reasonable suspicion against him of having committed the offence in question. It can thus be found that the applicant had sufficient information about the criminal proceedings against him and about the scope of the search warrant enabling him to spot and complain of insufficiencies related to the search warrant or abuse during the search.
23. Furthermore, both the Office of the Prosecutor General and the Harju County Court reviewed the warrant and gave reasoned decisions as to why they considered the warrant to have been sufficiently reasoned. Contrary to what the applicant suggested, the Court has no particular grounds to doubt, from the outset, the effectiveness of the judicial review carried out by a court on the same level of jurisdiction as the one which performed the mandatory ex post facto review of the search warrant.
24. In his observations to the Court, in addition to the complaints indicated above (see paragraph 20 above), the applicant argued that the search had not been based on reasonable suspicion of him having committed an offence and that he had not been informed of the right not to incriminate oneself when revealing his passwords to the authorities. The Court notes that other than not having been raised on the application form addressed to the Court, the applicant failed to raise these issues in his appeal to the Harju County Court. The Court will thus not examine these matters further.
25. Apart from the above-described judicial review carried out in the present case, the Court takes note of the Government’s assertion (submitted with references to domestic case-law, and also in reference to Särgava, cited above, § 70) that the person subjected to search can raise his or her complaints as to the unlawfulness of the search warrant during the trial and seek for the evidence thereby obtained be excluded. Moreover, in some instances of unlawful search a person may have a right to claim compensation for the harm suffered under the Compensation for Damage Caused in Offence Proceedings Act.
26. In the light of the above considerations the Court finds that domestic law provided appropriate and sufficient safeguards against arbitrary interference with the applicant’s rights under Article 8 of the Convention. The mandatory ex post facto judicial review followed by a further review in the proceedings for appealing against investigative activities were carried out in a manner that in the circumstances of the present case assured effective protection of the applicant’s rights despite the fact that he was not afforded a copy of the search warrant. The Court has no grounds to question the relevance or sufficiency of the reasons provided by the Harju Country Court in its decision of 28 August 2020.
27. Accordingly, it concludes that the impugned interference was “in accordance with the law” and “necessary in a democratic society”, as required by Article 8 of the Convention. The fact that the criminal case against the applicant was later terminated cannot change that assessment.
28. Having regard to the above, the Court considers that the applicant’s complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 10 October 2024.
Olga Chernishova Jolien Schukking
Deputy Registrar President