CASE OF GUROV AND OTHERS v. RUSSIA – 5123/09 and 2 others. The applicants complained of the secret surveillance in the context of criminal proceedings

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.


THIRD SECTION
CASE OF GUROV AND OTHERS v. RUSSIA
(Applications nos. 5123/09 and 2 others – see appended list)
JUDGMENT
STRASBOURG
5 May 2022

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

In the case of Gurov and Others v. Russia,

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

Darian Pavli, President,
Peeter Roosma,
Frédéric Krenc, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 7 April 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 the secret surveillance in the context of criminal proceedings.

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 that the interception of their telephone conversations in the course of the criminal proceedings against them had violated their right to respect for their private life, home and correspondence. They relied, expressly or in substance, on Article 8 of the Convention, which reads as follows:

Article 8

“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.”

7. The Court reiterates that the measures aimed at interception of telephone communications amounted to an interference with the exercise of the rights set out in Article 8 of the Convention and that such interference will give rise to a breach of Article 8 of the Convention unless it can be shown that it was “in accordance with law”, pursued one or more legitimate aim or aims as defined in the second paragraph and was “necessary in a democratic society” to achieve those aims (see, among other authorities, Goranova-Karaeneva v. Bulgaria, no. 12739/05, § 45, 8 March 2011). It further reiterates that it is the obligation of 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). The failure to comply with this requirement has led the Court to conclude to a violation of the Article 8 of the Convention (see, for example, Dudchenko v. Russia, no. 37717/05, § 45, 7 November 2017, cited above, §§ 93-100, in which it was established that the domestic courts failed to verify, when authorising covert surveillance in respect of the applicant, whether there was a “reasonable suspicion” against him and to apply the “necessity in a democratic society” and “proportionality” tests).

8. The Court does not lose sight that in earlier cases against Russia it has not established an availability of effective remedies for the applicants to exhaust prior to introducing a complaint before the Court (see, for example, Zubkov and Others, cited, above, §§ 85-99). In this connection, it reiterates 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 (ibid., §107 in fine).

9. The Court is satisfied that the applicants’ complaints comply with the admissibility criteria set out in Article 35 of the Convention.

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 on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant cases (as set out in the appended table) the courts did not verify the existence of a “reasonable suspicion” and did not apply the “necessity in a democratic society test” when examining the applicants’ complaints.

11. These complaints are therefore admissible and disclose a breach 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 v. Russia, no. 21200/05, 7 November 2017, 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 5 May 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)

No. Application no.

Date of introduction

Applicant’s name

Year of birth

 

Representative’s name and location Type of secret surveillance Date of the surveillance authorisation

Name of the issuing authority

Other relevant information Specific defects Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant /household

(in euros)[i]

1. 5123/09

07/11/2008

Yuriy Aleksandrovich GUROV

1960

 

 

interception of telephone communications, collection of data from technical channels of communication 05/03/2007 the Supreme Court of the Komi Republic The complaint about secret tapping was not raised in the criminal proceedings but the applicant lodged complaints with the prosecutor’s office and complained to the Court within six months after receiving a reply on 23/09/2008. the courts did not verify the existence of a “reasonable suspicion” and did not apply the “necessity in a democratic society test” 7,500
2. 18596/11

11/03/2011

(3 applicants)

Household

 

Yuliya Vladimirovna TSIVILSKAYA

1981

 

Sergey Mikhaylovich TSIVILSKIY

1979

 

Vladimir Alekseyevich YERMOLENKO

1957

 

 

 

interception of telephone communications, surveillance (“наблюдение”), collection of data from technical channels of communication 16/03/2009 the Astrakhan Regional Court The final domestic decision for the purpose of the calculation of the six-months’ time-limit: Astrakhan Regional Court (cassation appeal), 10/03/2011. the courts did not verify the existence of a “reasonable suspicion” and did not apply the “necessity in a democratic society test”, the use of “surveillance” or “operative experiment” measures not accompanied by sufficient safeguards against arbitrariness (”quality of law”) 7,500
3. 72300/11

16/11/2011

Anton Aleksandrovich BELKIN

1990

Dobrynin Vladimir Alekseevich

Tula

Operative experiment, surveillance (“наблюдение”) 03/12/2010

the Tula Regional Anti-Narcotics Department;

09/12/2010

the Sovetskiy District Court of Tula.

Surveillance inside of the applicant’s flat on 07/12/2020 without a court order;

surveillance ordered on 09/12/2020 by the Sovetskiy District Court of Tula without assessment of proportionality;

The applicant was convicted of drug dealing. The final decision was issued by the Supreme Court of Russia on 24/08/2011. On 22/11/2012 the conviction was altered by the Supreme Court, several operative measures (test purchases of 09/12/2010 and 12/12/2010) were declared unlawful.

the courts did not verify the existence of a “reasonable suspicion” and did not apply the “necessity in a democratic society test”, the use of “surveillance” or “operative experiment” measures not accompanied by sufficient safeguards against arbitrariness (”quality of law”) 7,500

[i] Plus any tax that may be chargeable to the applicants.

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