Last Updated on March 15, 2022 by LawEuro
The case concerns the interception of the applicants’ telephone communications in the framework of criminal proceedings against other persons. Both applicants complain of a violation of Article 8 of the Convention on account of the insufficient safeguards provided by domestic law. The first applicant also complains about the absence of an effective remedy in respect of her complaint under Article 8 of the Convention.
SECOND SECTION
CASE OF IURCOVSCAIA AND PAVLOVSCHI v. THE REPUBLIC OF MOLDOVA
(Applications nos. 74360/12 and 78119/14)
JUDGMENT
STRASBOURG
15 March 2022
This judgment is final but it may be subject to editorial revision.
In the case of Iurcovscaia and Pavlovschi v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Branko Lubarda, President,
Jovan Ilievski,
Diana Sârcu, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the applications 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”) on 19 November 2012 and 15 December 2014 respectively by two Moldovan nationals, Ms Natalia Iurcovscaia and Mr Stanislav Pavlovschi (“the applicants”), who were represented by the second applicant;
the decision to give notice of the applications to the Moldovan Government (“the Government”) represented by their Agent, Mr O. Rotari;
the parties’ observations;
Having deliberated in private on 22 February 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT-MATTER OF THE CASE
1. The case concerns the interception of the applicants’ telephone communications in the framework of criminal proceedings against other persons. Both applicants complain of a violation of Article 8 of the Convention on account of the insufficient safeguards provided by domestic law. The first applicant also complains about the absence of an effective remedy in respect of her complaint under Article 8 of the Convention.
2. On 29 December 2010 the criminal investigation no. 2011028011 was initiated into the murder of P. Three persons, S.V., I.O and S.A., were charged with kidnapping and murdering P. (see more facts in Iurcovschi and others v. the Republic of Moldova [Committee], no. 13150/11, 10 July 2018). The first applicant is I.O.’s spouse. The second applicant is I.O.’s brother and S.V.’s lawyer.
3. On 14 March 2011 the investigating judge authorised the prosecutor’s request to intercept the first applicant’s phone communications for 30 days; the decision was final. The documents referred to the applicant, to her mobile phone number and noted the existence of “reasons to believe that information of particular importance to establish the truth in [the] criminal case [would] be obtained by phone tapping” without any further details.
4. On 25 January 2011 the investigating judge authorised the prosecutor’s request to tap a phone number (XX75) for 30 days; the decision was final. The warrant referred to the second applicant’s phone number (XX75) but did not identify him as the owner or user of the said number. The warrant cited the existence of “sufficient grounds to assume that, by intercepting and registering [those] phone communication, information of particular importance to establish the truth in [the] criminal case [would] be obtained” without any further details.
5. On 24 October 2012 I.O. was given access to the criminal case before committal for trial and on this occasion he and the first applicant learned that her communications had been intercepted and obtained copies of the impugned decisions.
6. At the second applicant’s request in 2014 the Prosecutor General’s Office informed him that his mobile phone number [XX75] had been tapped from 27 January to 26 February 2011 within the framework of the criminal case no. 2011028011. Because the intercepted data did not contain useful information for the criminal investigation, a transcript was never made and no interception material was attached to the criminal case when it had been committed for trial on 29 March 2011. On 6 October 2014 the second applicant obtained copies of the impugned decisions.
THE COURT’S ASSESSMENT
I. JOINDER OF THE APPLICATIONS
7. 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
8. The Government argued that, by omitting to appeal against the impugned decisions, when such an appeal had become available as of 27 October 2012, the applicants had failed to exhaust domestic remedies. As the Government failed to adduce any evidence that the 2012 amendments to the Criminal procedure code allowed the applicants to appeal against final decisions issued by investigating judges before those amendments had entered into force, the Court concludes that their objection should be dismissed.
9. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
10. The general principles concerning the interception of telephone communications have been summarised in Roman Zakharov v. Russia ([GC], no. 47143/06, §§ 227-234, ECHR 2015) and in Iordachi and Others v. Moldova (no. 25198/02, §§ 37-40, 10 February 2009).
11. It is undisputed that there has been an interference with the applicants’ right to respect for their private life. The Court further reiterates that it has already examined the question whether the system in place in the Republic of Moldova governing telephone tapping complied with the requirements of Article 8 of the Convention (see Iordachi and Others v. Moldova, cited above). It has ruled that the system in question lacked proper safeguards and thus breached the requirements of Article 8, in so far as the law did not clearly define the category of persons and the circumstances in which they were liable to have their communications intercepted (ibid., §§ 44 and 46), and did not elaborate on the degree of reasonableness of the suspicion against a person to authorise the interception (ibid., § 51); the limited role of the investigating judge who did not address the existence of compelling justification for authorising the interception and who could not review if the law had been complied with once the interception had been completed (ibid., §§ 47 and 51); the lack of safeguards other than the measure should be used only as a last resort (ibid., § 51) and lack of any safeguards to secure in practice the secrecy of lawyer‑client communications (ibid., § 50).
12. The Court notes that the laws applicable in the present case are similar to the ones examined in Iordachi and others and both the facts and the laws are similar to those in Popescu v. Moldova ((striking out), no. 11367/06, 8 June 2010). It was only in 2012 that the legal framework had been significantly amended but its analysis falls outside the scope of the present case.
13. In the present case, neither of the applicants were suspect or witness in the criminal case in which their phones had been tapped. More seriously, the second applicant was the lawyer of one of the suspects and the prosecutor had failed to diligently identify him as the owner of the phone number for which the interception had been requested. None of the domestic decisions provided any reasons as to why the interception of communications of persons unconnected to the criminal investigation, such as the applicants, had been necessary.
14. The parties disputed the timing when the applicants should have been notified about the impugned measures. Even assuming that the applicants had been notified in accordance with the domestic law, the Court notes that the applicants did not have any possibility to review how the interception measure had been implemented ex post factum once they had been notified. Moreover, in the case of the second applicant it appears that the intercepted data had been mishandled by the prosecutor and that the criminal file did not include any trace of the interception material at all (see paragraph 6 above).
15. For these reasons, and in the light of its previous case-law and having examined the observations submitted by the parties in the present case, the Court sees no reason to depart from the conclusion it reached in the case of Iordache and others, cited above, in particular given that the same legislation is at issue in the case before it.
16. Accordingly, the Court considers that in the present case there has been a violation of Article 8 of the Convention on account of a lack of safeguards in the procedure governing telephone interceptions.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
17. The first applicant also raised a complaint under Article 13 of the Convention about the lack of effective remedy in respect of her complaint under Article 8 of the Convention.
18. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has examined the main legal questions raised in the present applications. It thus considers that the applicant’s remaining complaint is admissible but that there is no need to give a separate ruling on them (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).
APPLICATION OF ARTICLE 41 OF THE CONVENTION
19. The first applicant claimed 3,000 euros (EUR) in respect of non‑pecuniary damage and EUR 2,921.26 in respect of costs and expenses, including EUR 71.26 for postage, incurred before the Court. She submitted a detailed timesheet of the work carried out by her legal representative and an invoice for his services, as well as postage receipts.
20. The second applicant claimed EUR 7,500 in respect of non-pecuniary damage and EUR 101 in respect of costs and expenses, submitting postage receipts for this amount.
21. The Government submitted that the claims were excessive.
22. The Court awards the first applicant EUR 3,000 in respect of non‑pecuniary damage and EUR 2,000 in respect of costs and expenses, plus any tax that may be chargeable to the applicant, and dismisses the remainder of the claims.
23. The Court awards the second applicant EUR 4,500 in respect of non‑pecuniary damage and his claims for costs and expenses in full, plus any tax that may be chargeable to the applicant, and dismisses the remainder of the claims.
24. 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. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of Article 8 of the Convention in respect of both applicants;
4. Holds that there is no need to examine the complaint under Article 13 of the Convention;
5. Holds
(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into Moldovan lei 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, to the first applicant;
(ii) EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to the second applicant;
(iii) EUR 2,000 (two thousand), plus any tax that may be chargeable, in respect of costs and expenses, to the first applicant;
(iv) EUR 101 (one hundred one euros), plus any tax that may be chargeable, in respect of costs and expenses, to the second applicant;
(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;
6. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 15 March 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Branko Lubarda
Deputy Registrar President
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