(Application no. 19856/04)
9 April 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Kolesnichenko v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 19 March 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“The investigator... has submitted an application for a search warrant at the address... which is the place of residence of Mr Kolesnichenko, an advocate with the Perm Regional Bar Association. The investigator argues that certain documents allegedly prepared by Mr G.S. had not in fact been drafted by him but rather fabricated by an electrophotographic process with the probable use of the same device as that used for preparing an application by the advocate Mr Kolesnichenko. This fact is confirmed by an expert report; accordingly, the investigation believes that certain objects of relevance for the investigative acts and the criminal case may be located at that address.
Having studied the materials produced at the hearing, the court considers that the application should be granted because it is reasoned. Since no criminal proceedings have been instituted against the advocate Mr Kolesnichenko and no charges have been levelled against him, the investigator’s application for a search warrant was lodged in accordance with law.
Sufficient information was submitted to the court in support of the application and, in these circumstances, there are grounds for authorising a search in Mr Kolesnichenko’s residence located at [the address on Gorky Street].”
The reasoning of the second warrant concerning Kuybyshev Street was identical, save for the mention that the address in Kuybyshev Street was the registered place of residence of the applicant’s late parents and also the registered address of the applicant’s office.
“The judicial decision of 12 February 2004 authorised a search of the flat in Gorky Street. It follows from the [investigator’s] application for a search warrant and the judicial decision that the search was necessary because there were sufficient reasons to believe that certain objects relevant to the criminal case could be found at the advocate Mr Kolesnichenko’s home. The judicial decision did not contain any concrete list of objects or documents. Thus, the claimant’s argument that the investigator seized objects and documents which had not been listed in the judicial decision, is unsubstantiated.”
II. RELEVANT DOMESTIC LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
1. Submissions by the parties
2. The Court’s assessment
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement:
(i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 10 (ten euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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 9 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis