European Court of Human Rights

 

 

 

THIRD SECTION

CASE OF SEMYAN AND OTHERS v. RUSSIA

(Applications nos. 56813/10 and 2 others –

see appended list)

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

28 July 2022

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

In the case of Semyan and Others v. Russia,

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

          Darian Pavli, President,
          Andreas Zünd,
          Mikhail Lobov, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 19 May 2022,

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

PROCEDURE

1.  The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.

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

THE FACTS

3.  The list of applicants and the relevant details of the applications are set out in the appended table.

4.  The applicants complained of secret surveillance in the context of the criminal proceedings against them.

THE LAW

I.        JOINDER OF THE APPLICATIONS

5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II.     ALLEGED VIOLATION OF ARTICLE 8 of the Convention

6.  The applicants complained of the use of “surveillance” or “operative experiment” measures (as specified in the attached table) in the course of the criminal proceedings against them. They relied, expressly or in substance, on Article 8 of the Convention, which reads, in so far as relevant, 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.”

7. As to the admissibility of the complaint, the Court has already established on a number of occasions, in the context of Article 8, that a judicial review which was incapable of examining whether the contested interference answered a pressing social need and was proportionate to the aims pursued could not be considered an effective remedy (see Akhlyustin v Russia, no. 21200/05, §§ 24-27, 7 November 2017). The Court has also emphasised that the applicants cannot be reproached for their attempt to bring their grievances to the attention of the domestic courts through the remedies which they mistakenly considered effective in the absence of evidence that they were aware or should have become aware of the futility of their course of action (compare, Zubkov and Others v. Russia, nos. 29431/05 and 2 others, § 107, 7 November 2017). Thus, the six-month period in the present applications shall be calculated from the final decisions in the proceedings used by the applicants (ibid, §§ 100-11). In this regard, the Court notes that the applicants have complied with the six months’ requirement and that their complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.

8.  As to the merits of these complaints, the Court reiterates that covert surveillance measures, including video and audio recording of the applicants’ communications, amount to an interference with their right to respect for their 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, cited above, § 131).

9.  In Bykov judgement, the Court has concluded that the Russian legislation which permitted the police to conduct secret surveillance without judicial authorisation fell short of the standards of the quality of law set out in Article 8 of the Convention. In the Court’s view, leaving the secret surveillance operation to the sole discretion of law enforcement authorities, the domestic law failed to provide adequate safeguards against various possible abuses (see Bykov, cited above, §§ 73-83).

10.  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 in the present case. It considers that in the instant case the interception and recording of the applicants’ communications conducted in the absence of a judicial authorisation were not accompanied by adequate safeguards against various possible abuses, were open to arbitrariness and inconsistent with the requirement of lawfulness.

11.  Accordingly, there has been a violation of Article 8 of the Convention.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

12.  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.”

13.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Akhlyustin, cited above; Zubkov and Others, cited above; Dudchenko, cited above; 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 sums indicated in the appended table.

14.  The Court further 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.      Decides to join the applications;

2.      Declares the applications admissible;

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

4.      Holds

(a)  that the respondent State is to pay the applicants, within three months, the amounts 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 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 28 July 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

      Viktoriya Maradudina                                                Darian Pavli

    Acting Deputy Registrar                                                President

 

APPENDIX

List of applications raising complaints under Article 8 of the Convention

(secret surveillance in the context of criminal proceedings)