CASE OF ILYICHEV AND ZUBKOV v. RUSSIA (European Court of Human Rights) 2703/18 and 23642/18

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


THIRD SECTION
CASE OF ILYICHEV AND ZUBKOV v. RUSSIA
(Applications nos. 2703/18 and 23642/18)
JUDGMENT
STRASBOURG
1 December 2022

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

In the case of Ilyichev and Zubkovv. 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, Acting Deputy 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 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. In application no. 2703/18, the applicant also raised other complaints under the provisions of the Convention.

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 8of 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:

“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 complaints, 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 Bykovjudgement, 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. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

12. Mr Ilyichev (application no. 2703/18) submitted a complaint under Article 3 of the Convention, given the relevant well-established case-law of the Court (see the appended table). This complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that this complaint also discloses a violation of the Convention in the light of its findings in Svinarenko and Slyadnevv. Russia [GC], nos. 32541/08 and 43441/08, §§ 84-139, ECHR 2014 (extracts), concerning the use of a metal cage in the courtroom.

13. In view of the above findings, the Court considers that there is no need to deal separately with the complaint lodged by Mr Ilyichev (application no. 2703/18) under Article 13 of the Convention in respect of his placement in a metal cage in the courtroom (compare Valyuzhenich v. Russia, no. 10597/13, § 27, 26 March 2019).

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

14. 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.”

15. 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 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 sums indicated in the appended table.

16. 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 complaints concerning secret surveillance in the context of criminal proceedings and another complaint raised by the applicant, Mr Ilyichev (application no. 2703/18), under the well-established case‑law of the Court (as set out in the appended table) admissible and holds that there is no need to deal separately with the complaint lodged by Mr Ilyichev (application no. 2703/18) under Article 13 of the Convention in respect of his placement in a metal cage in the courtroom;

3. Holds that these applications disclose a breach of Article 8 § 1 of the Convention concerning the secret surveillance in the context of the criminal proceedings;

4. Holds that there has been a violation of the Convention as regards another complaint raised under well-established case-law of the Court (see appended table);

5. 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 1 December 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 § 1 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

Specific defects Other complaints under well-established case-law Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant

(in euros)[i]

1. 2703/18

15/12/2017

Artem Vladimirovich ILYICHEV

1978

GabrilovichMariyaAlekseyevna

Moscow

Interception of telephone communications, operative experiment 29/06/2015,

Moscow City Court

No judicial authorisation in respect of interception conducted from 26/06/2015 to 28/06/2015, no relevant and sufficient grounds for interception Art. 3 – use of metal cages and/or other security arrangements in courtrooms – The applicant took part in the appeal hearing in the Moscow City Court on 23/08/2017 by way of videoconference from SIZO sitting in a cage. 9,750
2. 23642/18

10/05/2018

Vasiliy Nikolayevich ZUBKOV

1955

Dankov Andrey Pavlovich

Kursk

Surveillance (“наблюдение”), collection of data from technical channels of communication, interception of telephone communications, video taping 19/05/2015,

Federal Security Service of the Kursk Region

 

Video/audio surveillance in the applicant’s office without judicial authorisation 7,500

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

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