Judgment 24.1.2023 [Section III]
Respect for home
Respect for private life
Unjustified search of journalists’ home and indiscriminate seizure of their personal belongings: violation
Rule 44C of the Rules of Court
Failure to participate effectively
Respondent State’s failure to engage with the proceedings after the cessation of its membership of the Council of Europe not an obstacle per se for the Court’s examination of the case
Facts – The first applicant, Ms Svetova, is a human rights activist and journalist who had collaborated with the Open Russia Foundation, a non-profit organisation founded by Mr Khodorkovskiy. The remaining applicants, members of her family, are also journalists and activists. In 2017 their flat was searched, and their personal belongings seized, in connection with a criminal investigation into the financial dealings of Mr Khodorkovskiy and his business associates. The investigator also downloaded information from Ms Svetova’s computer which contained interviews and other journalistic materials. Subsequently, the domestic courts refused to consider the applicants’ complaints about the legality and the manner in which the search and seizure measures had been executed, stating that those matters would be examined at some future point in time during a criminal trial against Mr Khodorkovskiy. At the end of 2021 the applicants’ complaints under Articles 8, 10 and 13 were communicated by the Court to the respondent Government.
On 16 March 2022 the Committee of Ministers of the Council of Europe, in the context of a procedure launched under Article 8 of the Statute of the Council of Europe, adopted Resolution CM/Res(2022)2, by which the Russian Federation ceased to be a member of the Council of Europe as from 16 March 2022. On 22 March 2022 the Court, sitting in plenary session in accordance with Rule 20 § 1, adopted the “Resolution of the European Court of Human Rights on the consequences of the cessation of membership of the Russian Federation to the Council of Europe in light of Article 58 of the European Convention on Human Rights”. It stated that the Russian Federation would cease to be a High Contracting Party to the Convention on 16 September 2022.
On 5 September 2022 the Plenary Court took formal notice of the fact that the office of judge with respect to the Russian Federation would cease to exist after 16 September 2022. This, as a consequence, entailed that there was no longer a valid list of ad hoc judges who would be eligible to take part in the consideration of the cases against Russia. Having informed the parties, the President of the Chamber decided to appoint an ad hoc judge among the members of the composition, applying by analogy Rule 29 § 2 (b) of the Rules of Court.
The Russian Government did not submit their observations on the applicants’ case.
(a) Preliminary Issues
(i) Whether the Court has jurisdiction to deal with the case
Referring to the wording of Article 58 of the Convention (§§ 2 and 3), a well as to its resolution of 22 March 2022, the Court confirmed that a State which ceased to be a Party to the Convention by virtue of the fact that it had ceased to be a member of the Council of Europe was not released from its obligations under the Convention in respect of any act performed by that State before the date on which it had ceased to be a Party to the Convention. Therefore, because the facts that gave rise to violations of the Convention alleged by the applicants took place before 16 September 2022, the Court had jurisdiction to deal with them.
(ii) Consequences of the Government’s failure to participate in the proceedings
The respondent Government by failing to submit the written observations when requested to do so had manifested their intention to abstain from further participating in the examination of the application. However, the Convention obliged the States to furnish all necessary facilities to make possible a proper and effective examination of applications. Rule 44 A of the Rules of Court provides that parties have a duty to cooperate with the Court. In conjunction, the evidential standard of proof is “beyond reasonable doubt” with assessment made by a free evaluation of all the evidence; the distribution of the burden of proof remaining intrinsically linked to the specificity of the facts, the nature of the allegations made and the Convention right at stake, as well as the conduct of the parties. Pursuant to Rule 44C § 2 of the Rules of Court, “a respondent Contracting Party’s failure or refusal to participate effectively in the proceedings shall not, in itself, be a reason for the Chamber to discontinue the examination of an application.” This provision acted as an enabling clause for the Court, making it impossible for a party unilaterally to delay or obstruct the conduct of proceedings. A situation where a State had not participated in at least some stages of the proceedings did not prevent the Court from conducting the examination of an application in the past. The respondent Government’s failure to submit their memorials or participate in a hearing in the absence of sufficient cause was considered as a waiver of their right to participate. Proceeding with the examination of the case in the face of such a waiver was consistent with the proper administration of justice with inferences being drawn as appropriate from a party’s failure or refusal to participate effectively in the proceedings (Rule 44C § 1 of the Rules of Court). At the same time, the failure of the respondent State to participate effectively in the proceedings should not automatically lead to acceptance of the applicants’ claims, and the Court had to be satisfied by the available evidence that the claim was well founded in fact and law. The cessation of a Contracting Party’s membership of the Council of Europe did not release it from its duty to cooperate with the Convention bodies. This duty continued for as long as the Court remained competent to deal with applications arising out of acts or omissions capable of constituting a violation of the Convention, provided that they took place prior to the date on which the respondent State had ceased to be a Contracting Party to the Convention. Since the events in the instant case which the applicants complained about had occurred before 16 September 2022 and the Court was competent to deal with the application, the respondent Government’s failure to engage with the proceedings could not be an obstacle for its examination.
The search of the applicants’ flat and the seizure of their personal belongings constituted an interference with their right to respect for their private life and home. The applicants had not been given a copy of the search warrant, had only been allowed to read it briefly and the Russian courts had declined to carry out a judicial review of the reasons underlying the issuance of the warrant. The respondent Government had chosen not to participate in the proceedings or to submit any documents or arguments in their defence. Accordingly, the Court had to examine the application on the basis of the applicants’ submissions which were presumed to be accurate where supported by evidence and as long as other evidence available in the case file did not lead to a different conclusion.
There was no indication that the applicants had been charged with or suspected of any criminal offence or unlawful activities, with their home having been searched in connection with a criminal case against third parties in which the applicants did not have any procedural status. Therefore, the Court was unable to satisfy itself that the warrant had been based on a reasonable suspicion that any items indicative of any criminal activities might be found in the applicants’ flat. The reasons indicated in the search record which appeared to reflect the language of the search warrant could not be accepted as “relevant” or “sufficient” as they had not indicated any possible connection between the applicants and the criminal case against the third parties. The search warrant had been issued fourteen years after the opening of a criminal case against the third parties and was executed forty days after it had been issued. Such a wide time frame, in the absence of any explanation, made doubtful its usefulness for the investigation. The search record contained general and broad terms which gave the police unrestricted discretion in determining which items and documents were to be seized. On the basis of that overly broad scope, the investigator had removed multiple personal items belonging to the applicants. Such indiscriminate seizure could not be considered “necessary in a democratic society”.
Conclusion: violation (unanimously).
The Court also found violation of Article 13 in conjunction with Article 8, as the domestic court’s refusal to consider the applicants’ complaint had had the practical effect of denying an effective review of their grievances (they were not the individuals being investigated and had no status in any criminal proceedings). The Court also found, unanimously, a breach of Article 10 on account of a disproportionate interference with Ms Svetova’s journalistic freedom of expression.
Article 41: awards ranging from EUR 4,000 to EUR 10,000 in respect of non-pecuniary damage.
(See also Georgia v. Russia (I) [GC], 13255/07, 3 July 2014, Legal Summary; Abu Zubaydah v. Lithuania, 46454/11, 31 May 2018, Legal Summary; Fedotova and Others v. Russia [GC], 40792/10, 17 January 2023, Legal Summary; Kutayev v. Russia, no. 17912/15, 24 January 2023)