CASE OF SYSOYEVY v. RUSSIA (European Court of Human Rights) 74779/17

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


THIRD SECTION
CASE OF SYSOYEVY v. RUSSIA
(Application no. 74779/17)
JUDGMENT
STRASBOURG
1 December 2022

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

In the case of Sysoyevy v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President,
Ioannis Ktistakis,
Andreas Zünd, judges,
and Viktoriya Maradudina, ActingDeputy Section Registrar,

Having deliberated in private on 10 November 2022,

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 11 October 2017.

2. The applicants were represented by Ms T. Tretyak, a lawyer practising in Gelendzhik.

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

THE FACTS

4. The list of applicants and the relevant details of the application are set out in the appended table.

5. The applicants complained of the secret surveillance in the context of criminal proceedings.

THE LAW

I. 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 on Article 8 of the Convention, which 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.”

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 these requirements 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, §§ 93-100, 7 November 2017, 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. 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 case 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.

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

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

11. 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.”

12. 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, 7 November 2017, 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 sum indicated in the appended table.

13. 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. Declares the application admissible;

2. Holds that this application discloses a breach of Article 8 of the Convention concerning the secret surveillance in the context of the criminal proceedings;

3. Holds

(a) that the respondent State is to pay the applicants jointly, 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 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 1 December 2022, 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 § 1 of the Convention
(secret surveillance in the context of criminal proceedings)

Application no.
Date of introduction
Applicant’s name
Year of birth
 
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 household
(in euros)[1]
74779/17
11/10/2017
Household
Dmitriy Aleksandrovich SYSOYEV
1997
Sergey Alexandrovich SYSOYEV
1990
interception of telephone communications 21/10/2015, Krasnodar Regional Court The applicants were charged and convicted of drug dealing. Their conviction upheld on appeal by the Krasnodar Regional Court on 12/04/2017 was quashed by way of cassation review on 25/07/2018. In the new proceedings the applicants were found guilty as charged again.
The final decision on the matter was taken by the Supreme Court of the Russian Federation on 30/12/2020.
The courts did not verify the existence of a “reasonable suspicion” and did not apply the “necessity in a democratic society test” 7,500

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

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