CASE OF LISOVAIA v. THE REPUBLIC OF MOLDOVA
(Application no. 16908/09)
16 January 2018
This judgment is final but it may be subject to editorial revision.
In the case of Lisovaia v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Ledi Bianku, President,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 19 December 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 16908/09) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Ms Alla Lisovaia (“the applicant”), on 11 March 2009.
2. The applicant was represented by Mr V. Curmeli, a lawyer practising in Chisinau. The Moldovan Government (“the Government”) were represented by their Agent, Ms R. Revencu.
3. On 8 June 2016 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1984 and lives in Chisinau.
5. At the material time, the applicant was a student and was undertaking an unpaid internship at a law firm.
6. On 23 October 2008 criminal proceedings were initiated against T., a lawyer with whom the applicant worked, on charges of trading in influence. In particular, T. was accused of receiving 10,500 euros (EUR) from D. to pass on to the judges examining a criminal case against a relative of D.’s in order to obtain his acquittal or a more lenient sentence. The applicant had no procedural standing in those proceedings.
7. On 30 October 2008 the police lodged with an investigating judge a request for a warrant to search the applicant’s apartment. The request was granted; the decision to issue the warrant read as follows:
“The criminal investigation against T. was initiated on 23 October 2008 ... In the course of the investigation it has been established that from March until September 2008, T. extorted and received from D. in several instalments the amount of EUR 10,500, [to be given to] the judges who examined D.’s relative’s case, in order to obtain his acquittal or a more lenient sentence.
On 24 October 2008 T. was caught in flagrante receiving 3,800 US dollars (USD) from D., allegedly for influencing the prosecutor not to appeal against the [subsequent] judgment [acquitting the accused].
The evidence in the file and the material obtained through the operational investigation allow the well-founded assumption that at [the applicant’s] home, situated at [address], can be found EUR 10,500 received from D. and relevant documents,
To order a search of [the applicant’s] residence, situated at [address], with the aim of finding and seizing EUR 10,500 received from D. and documents concerning the criminal case.”
8. On the same day, a prosecutor lodged a request with the Buiucani District Court for a warrant to be issued for the search of the applicant’s apartment. His request took the form of a verbatim copy of the police decision. Also on the same day the Buiucani district investigating judge issued a decision authorising the search. The decision read as follows:
“The present criminal proceedings were initiated on 23 October 2008 ... against T.
After hearing the prosecutor and examining the material, and taking in consideration the fact that that material had been obtained in [a manner] in compliance with the law, the court finds that the request for the authorisation of the search is well founded and should be upheld.
On the basis of Articles 41, 125, 301, 305 and 306 of the Code of Criminal Procedure, the court:
1. Grants the prosecutor’s request.
2. Authorises a search of [the applicant’s] residence, situated at [address].
3. [Declares that] the decision is final.”
9. On 10 December 2008 the police searched the applicant’s apartment in the presence of her elderly mother [but not the applicant]. They did not find anything.
10. On 21 August 2009 the applicant lodged a request for access to the evidence which had been presented to the judge to justify the search. On 3 September 2009 the Buiucani district investigating judge replied that the case file was held at the [premises of] the investigating authority and that access could only be granted pursuant to the law.
11. It appears from the material in the case file that the criminal proceedings against T. ended with the latter’s acquittal.
II. RELEVANT DOMESTIC LAW
12. The relevant provisions of the Code of Criminal Procedure (“the CCP”) read as follows:
“Article 125. Grounds for ordering a search.
(1) The investigating authority has the power to [undertake a] search if the evidence in the file or operational investigative material give reason to believe that objects or documents and valuables obtained as a result of a crime or other objects and documents which may be important for the criminal case are in a certain room or another place.
(3) Searches shall be carried out on the basis of a reasoned order of the investigating authority and only with the authorisation of the investigating judge. ...”
“Article 301. Criminal-investigation measures carried
out with the
authorisation of the investigating judge.
(1) Criminal investigations involving limitations on the inviolability of the home ... shall be authorised by the investigating judge. ...”
“Article 305. Manner of dealing with requests for a criminal
or operational investigation or the application of preventive measures.
1. A request for a criminal investigation or operational investigations or the application of preventive measures shall be examined by the investigating judge in camera, with the participation of the prosecutor and, if applicable, the agency responsible for carrying out the operational investigation.
8. A decision adopted by the investigating judge under the provisions of the present Article is final, except in cases provided in the present Code.”
On 27 October 2012 paragraph 8 of Article 305 was amended as follows:
“8. A decision adopted by the investigating judge under the provisions of the present Article can be challenged by [lodging] an appeal on points of law with the Court of Appeal.”
“Article 306. Court decisions concerning criminal
operational investigations or the application of preventive measures.
A court decision regarding investigative actions, operational measures or preventive measures shall note [in its reasoning]: ... the authority carrying out the operational investigation, investigative or preventive measures, the aim of taking these actions or measures, and the person to whom they refer, as well as the authorisation or the refusal to authorise the measures, the period for which the action is authorised, [and] the authority empowered to enforce the decision ...”
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
13. The applicant complained under Article 8 of the Convention about the search of her apartment, in breach of her right to respect for her home. Article 8 reads as follows:
“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.”
14. The Government submitted that the application was inadmissible under Article 35 § 3 (b) of the Convention because the applicant had suffered no significant disadvantage.
15. The Court reiterates that the new criterion of no significant disadvantage hinges on the idea that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed taking account of both the applicant’s subjective perceptions and what is objectively at stake in a particular case (see Korolev v. Russia (dec.), no. 25551/05, ECHR 2010). Thus, the absence of any such disadvantage can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant (see Adrian Mihai Ionescu v. Romania (dec.) no. 36659/04, § 34, 1 June 2010; Rinck v. France (dec.), no. 18774/09, 19 October 2010; and Kiousi v. Greece (dec.), no. 52036/09, 20 September 2011). Moreover, a violation of the Convention may concern important questions of principle and thus cause a significant disadvantage without affecting pecuniary interests (see Korolev (dec.), cited above).
16. Turning to the facts of the present case, the Court does not agree that, in the circumstances, issues relating to the right to respect for home could constitute an “insignificant” disadvantage. The Government’s objection is therefore dismissed.
17. The Court notes that the complaint is not manifestly ill-founded, within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
18. The applicant submitted that the search of her apartment had been arbitrary and abusive since there had been no grounds for believing that the money that the investigators sought was hidden in that place. The applicant also submitted that the court order by which the search had been authorised had not contained any reference to the duration of the validity of the order, as required by Article 306 of the Code of Criminal Procedure.
19. The Government conceded that there had been an interference with the applicant’s right to respect for her home; however, that interference had been in accordance with the law, had pursued a legitimate aim, and had been necessary in a democratic society.
20. The Court agrees with the parties that there has been an interference with the applicant’s right to respect for her home. Moreover, the Court notes that the interference in question was in accordance with the law and that that law is in line with the requirements listed in Article 8 (see Mancevschi v. Moldova, no. 33066/04, § 42, 7 October 2008). The interference appears to have pursued the legitimate aim of the prevention of disorder or crime.
21. The Court must therefore examine whether the interference was “necessary in a democratic society”. In this respect the Court reiterates that search warrants should be based on a reasonable suspicion and be drafted with sufficient precision and detail. The compatibility of a search warrant with these requirements has always been a matter of concern for the Court (see, among many other authorities, Niemietz v. Germany, 16 December 1992, § 37, Series A no. 251-B; Van Rossem v. Belgium, no. 41872/98, § 45, 9 December 2004; Smirnov v. Russia, no. 71362/01, § 47, 7 June 2007; and Iliya Stefanov v. Bulgaria, no. 65755/01, §§ 40 and 41, 22 May 2008).
The Court notes that the wording of the search warrant issued by the investigating judge in the present case repeated almost entirely the order given by the police and that it did not contain any information about the reasons why it was believed that the search of the applicant’s apartment would enable evidence to be obtained (see Mancevschi, cited above, § 48, and Golovan v. Ukraine, no. 41716/06, § 61, 5 July 2012). In these circumstances the Court finds that the domestic authorities failed in their duty to give “relevant and sufficient” reasons for issuing the search warrant. There has, accordingly, been a violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
22. The applicant further complained under Article 13 that she did not have an effective remedy to complain about the violation of her right to respect for home. Article 13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
23. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
24. The applicant submitted that she had no remedy under domestic law to complain about the breach of her right to respect for her home.
25. The Government contested that argument and pointed to Article 305 § 8 of the Code of Criminal Procedure which, according to them, allowed the applicant to challenge the search warrant of 30 October 2008 before the Chisinau Court of Appeal.
26. The Court notes that in Mancevschi (cited above, §§ 32-34) it dismissed an objection lodged by the Government concerning the failure to exhaust domestic remedies after coming to the conclusion that the remedies indicated by them were not effective. In the present case the Government indicated a new remedy - namely, Article 305 § 8 of the Criminal Procedure Code - and argued that the applicant could rely on it as a means of challenging the search warrant. However, the Court notes that this provision was not in force at the time of the events in question and that it was only introduced almost four years later - namely on 27 October 2012 (see paragraph 12 above).
27. In such circumstances, and taking into consideration the Court’s findings in Mancevschi, the Court considers that it has not been shown that effective remedies existed in respect of the applicants’ complaint under Article 8. There has therefore been a breach of Article 13 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
28. Article 41 of the Convention provides:
“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.”
29. The applicant argued that she was entitled to an award of 5,000 euros (EUR) in respect of the non-pecuniary damage she had suffered.
30. The Government submitted that that amount was excessive.
31. Having regard to the violation found above, the Court considers that an award in respect of non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards the entire amount claimed.
B. Costs and expenses
32. The applicant also claimed EUR 500 for costs and expenses incurred before the Court.
33. The Government maintained that that claim was excessively high.
34. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the entire amount claimed for costs and expenses.
C. Default interest
35. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 8 of the Convention;
3. Holds that there has been a violation of Article 13 of the Convention;
(a) that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 500 (five hundred 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;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 16 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Ledi
Deputy Registrar President