European Court of Human Rights

THIRD SECTION

CASE OF BORODOKIN v. RUSSIA

(Application no. 63614/11)

JUDGMENT

STRASBOURG

8 July 2021

This judgment is final but it may be subject to editorial revision.

In the case of Borodokin v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Darian Pavli, President,
          Dmitry Dedov,
          Peeter Roosma, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 17 June 2021,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 2 September 2011.

2.  The Russian Government (“the Government”) were given notice of the application.

THE FACTS

3.  The applicant’s details and information relevant to the application are set out in the appended table.

4.  The applicant complained of the secret surveillance in the context of criminal proceedings.

THE LAW

I.        ALLEGED VIOLATION OF ARTICLE 8 of the Convention

5.  The applicant complained that judicial orders authorising covert video and audio recordings of his communication with a witness had not been disclosed to him in contravention of Article 8 of the Convention, which, in so far as relevant, reads as follows:

Article 8

““1.  Everyone has the right to respect for his private ... life ....

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.”

6.  The Court reiterates that covert surveillance measures, including video and audio recording of the applicant’s communications, amount to an interference with his right to respect for his private life, within the meaning of Article 8 § 1 of the Convention, and are to be justified under Article 8 §2 (see, for example, Bykov v. Russia [GC], no. 4378/02, § 72, 10 March 2009). It further reiterates that it is incumbent on the domestic courts to carry out an effective judicial review of the lawfulness and “necessity in a democratic society” of the contested surveillance measures and to furnish sufficient safeguards against arbitrariness within the meaning of Article 8 § 2 of the Convention (see Zubkov and Others v. Russia, nos.  29431/05 and 2 others, §§ 131, 7 November 2017).

7.  The Court has already established, in a number of earlier cases, that the refusal on the part of the domestic authorities to disclose a surveillance authorisation to the applicants without a valid reason deprived them of any possibility to have the lawfulness of the surveillance measures and their “necessity in a democratic society” reviewed and amounted to a violation of Article 8 of the Convention (see, among other authorities, Šantare and Labazņikovs v. Latvia, no. 34148/07, §§ 60-62, 31 March 2016; Radzhab Magomedov v. Russia, no. 20933/08, §§ 80-84, 20 December 2016; and Zubkov and Others, cited above, §§ 122-32).

8.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court dismisses the Government’s objections as to the applicant’s failure to comply with the exhaustion and six-month requirements (see, for similar reasoning, Zubkov and Others, cited above, §§ 85-111) and considers that in the instant case there is nothing to suggest that the domestic courts which authorised the covert surveillance against the applicant verified whether there was a “reasonable suspicion” against him or applied the “necessity in a democratic society” and “proportionality” test. Moreover, the refusal to disclose the surveillance authorisation to the applicant without any valid reason deprived him of any possibility to have the lawfulness of the measure, and its “necessity in a democratic society”, reviewed by an independent tribunal in the light of the relevant principles of Article 8 of the Convention.

9.  These complaints are therefore admissible and disclose a breach of Article 8 of the Convention.

II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION

10.  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.”

11.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Akhlyustin v. Russia, no. 21200/05, 7 November 2017, Zubkov and Others, cited above, Dudchenko v. Russia, no. 37717/05, 7 November 2017, Moskalev v. Russia, no. 44045/05, 7 November 2017 and Konstantin Moskalev v. Russia, no. 59589/10, 7 November 2017), the Court considers it reasonable to award the sum indicated in the appended table.

12.  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 complaints concerning the secret surveillance in the context of criminal proceedings admissible;

2.      Holds that these complaints disclose a breach of Article 8 of the Convention concerning the secret surveillance in the context of criminal proceedings;

3.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the amount indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 8 July 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina                                                            Darian Pavli

Acting Deputy Registrar                                                            President

APPENDIX

Application raising complaints under Article 8 of the Convention

(secret surveillance in the context of criminal proceedings)