Information Note on the Court’s case-law No. 98
June 2007
Smirnov v. Russia - 71362/01
Judgment 7.6.2007 [Section I]
Article 8
Article 8-1
Respect for home
Unjustified search and seizure at lawyer's home without safeguards: violation
Article 1 of Protocol No. 1
Article 1 para. 2 of Protocol No. 1
Control of the use of property
Lengthy retention of lawyer's computer attached as evidence in a criminal case: violation
Facts: The applicant is a lawyer. In 2000, his flat was searched and numerous documents and the central unit of his computer were seized. They were attached as “physical evidence” in a criminal case in which the applicant had acted as the defendants' representative. He complained to a court, claiming that the seizure had impaired his clients' defence rights. The court dismissed the complaint finding that the search at his flat had been justified and procedurally correct and that the order to attach objects as evidence was not amenable to judicial review. The applicant also submitted a civil claim for damages which has not been examined to date. The notebook and some documents were returned to him, but not the computer.
Law: Article 8 – The search of the applicant's flat had been a lawful interference with his right to respect for his home which had pursued the legitimate aims of furthering the interests of public safety, preventing crime and protecting the rights and freedoms of others. Given that the applicant himself had not been suspected of any criminal offence, the search had been carried out without sufficient and relevant grounds or safeguards against interference with professional secrecy, the order's excessively broad terms giving total freedom to the police to determine what was to be seized. The search order had not contained any information about the ongoing investigation, the purpose of the search or the reasons why it was believed that the search at the applicant's flat would enable evidence of any offence to be obtained. The ex post factum judicial review had done nothing to fill the lacunae in the deficient justification of the search order. The court had confined its finding that the order had been justified, to a reference to some documents, without describing the contents and relevance of any of them. Moreover, some of these documents appeared after the search had been carried out. The domestic authorities thus had failed in their duty to give “relevant and sufficient” reasons for issuing the search warrant. In sum, the search had impinged on professional secrecy to an extent that had been disproportionate to whatever legitimate aim had been pursed.
Conclusion: violation (unanimously).
Article 1 of Protocol No. 1 – The applicant's central computer unit had been retained by the Russian authorities for over six years already. This situation fell to be examined from the standpoint of the right of a State to control the use of property in accordance with the general interest. The retention of physical evidence might be necessary in the interests of proper administration of justice, which was a “legitimate aim” in the “general interest” of the community. The Court agreed with the applicant's contention, not disputed by the Government, that the computer itself had not been an object, instrument or product of any criminal offence. What had been valuable and instrumental for the investigation had been the information stored on its hard disk. That information had been examined by the investigator, printed out and included in the case file. In these circumstances, the Court could not discern any apparent reason for continued retention of the central unit. Nor had any such reason been advanced in the domestic proceedings. Its retention had not only caused personal inconvenience to the applicant but also had hindered his professional activities and had even had repercussions on the administration of justice. Russia had therefore failed to strike a “fair balance” between the demands of general interest and the requirement to protect the applicant's peaceful enjoyment of his possessions.
Conclusion: violation (unanimously).
Article 13 taken together with Article 1 of Protocol No. 1 – The domestic courts had declared inadmissible the complaint on the ground that the decision to retain the computer was not amenable to judicial review. The applicant had been told to apply to a higher prosecutor instead. However, a hierarchical appeal to a higher prosecutor did not constitute an “effective remedy”. As regards the pending civil claim for damages, a civil court was not competent to review the lawfulness of decisions made by investigators in criminal proceedings. Therefore, the applicant had not had an effective remedy for that complaint.
Conclusion: violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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