CASE OF PROKAYEVA AND OTHERS v. RUSSIA – The applicants complained of the unlawful search

Last Updated on November 23, 2023 by LawEuro

The applicants complained principally of the unlawful search.

In the leading cases concerning searches of the applicants’ homes, the Court already found a violation in respect of issues similar to those in the present case.

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 searches were carried out without relevant and sufficient grounds and in the absence of safeguards that would confine their impact to reasonable bounds. These complaints are therefore admissible and disclose a breach of Article 8 of the Convention.

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Full text of the document.

European Court of Human Rights
FOURTH SECTION
CASE OF PROKAYEVA AND OTHERS v. RUSSIA
(Applications nos. 13079/17 and 26 others – see appended list)
JUDGMENT
STRASBOURG
23 November 2023

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

In the case of Prokayeva and Others v. Russia,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Branko Lubarda, President,
Armen Harutyunyan,
Ana Maria Guerra Martins, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 2 November 2023,

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 unlawful search. Some applicants 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. Jurisdiction

6. The Court observes that the facts giving rise to the alleged violations of the Convention occurred prior to 16 September 2022, the date on which the Russian Federation ceased to be a party to the Convention. The Court therefore decides that it has jurisdiction to examine the present applications (see Fedotova and Others v. Russia [GC], nos. 40792/10 and 2 others, §§ 68‑73, 17 January 2023).

III. ALLEGED VIOLATION OF ARTICLE 8 of the Convention

7. The applicants complained principally of the unlawful search. They relied, expressly or in substance, on Article 8 of the Convention.

8. In the leading cases concerning searches of the applicants’ homes (see Misan v. Russia, no. 4261/04, 2 October 2014 and Kruglov and Others v. Russia, nos. 11264/04 and 15 others, 4 February 2020), the Court already found a violation in respect of issues similar to those in the present case.

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 searches were carried out without relevant and sufficient grounds and in the absence of safeguards that would confine their impact to reasonable bounds.

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

IV. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

11. Some applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its well‑established case-law (see Idalov v. Russia [GC], no. 5826/03, §§ 103‑08 and 154-58, 22 May 2012, concerning conditions of transport of detainees and the lack of a speedy review of detention matters; Rozhkov v. Russia (no. 2), no. 38898/04, §§ 91-96, 31 January 2017, concerning forced attendance for questioning, and Dirdizov v. Russia, no. 41461/10, §§ 108-11, 27 November 2012, as regards excessive length of pre-trial detention).

V. remaining complaints

12. Some applicants also complained that they had not been afforded an effective domestic remedy in respect of their grievances under Article 8, contrary to Article 13 of the Convention. Having regard to the above findings, the Court does not consider it necessary to deal separately with the applicants’ complaints under Article 13 of the Convention (see Kruglov, cited above, § 138).

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

13. 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.”

14. Regard being had to the documents in its possession and to its case‑law (see, in particular, Misan, cited above, § 70), the Court considers it reasonable to award the sums indicated in the appended table.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Holds that it has jurisdiction to deal with these applications as they relate to facts that took place before 16 September 2022;

3. Declares the complaints under Article 8 of the Convention concerning the unlawful search and other complaints raised under the well-established case-law of the Court, as set out in the appended table, admissible, and finds that it is not necessary to deal separately with the applicants’ complaints under Article 13 of the Convention raised in connection to their Article 8 complaints;

4. Holds that these applications disclose a breach of Article 8 of the Convention concerning the unlawful search;

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

6. 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 23 November 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina                  Branko Lubarda
Acting Deputy Registrar                   President

____________

APPENDIX
List of applications raising complaints under Article 8 § 1 of the Convention
(unlawful search)

No.	Application no. Date of introduction	Applicant’s name Year of birth/registration	Representative’s name and location	Type of search Premises	Date of the search authorisation Name of issuing authority	Date of the search Means of exhaustion	Specific defects	Other relevant information	Other complaints under well‑established case-law	Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant/household (in euros)[i]
1.	13079/17 31/01/2017	Olga Nikolayevna PROKAYEVA 1961	Pechenev Igor Viktorovich Lipetsk	House search	22/09/2016, Gryazy Town Court of the Lipetsk Region	23/09/2016, the Lipetsk Regional Court rejected the applicant’s complaint concerning the authorisation of the search on 18/11/2016	no adequate and sufficient safeguards against abuse: broad terms/wide content and scope of the search warrant (objects and documents not specific enough to restrict police’s discretion)	The criminal case against the applicant was closed after the search had been conducted and brought no results		7,500
2.	43826/17 07/06/2017	Natalya Dmitriyevna NAZARETS 1966		House search	14/12/2016, Lechinskiy District Court of Vladivostok	25/01/2017-26/01/2017. Primorye Regional Court rejected the applicant’s complaint on 27/03/2017. The cassation appeal before the Primorye Regional Court was dismissed on 28/04/2017.	no adequate and sufficient safeguards against abuse: broad terms/wide content and scope of the search warrant (objects and documents not specific enough to restrict police’s discretion), no relevant or sufficient reasons to justify the search: applicant not a suspect, no evidence supporting the search authorisation, no reasons given why any relevant objects or documents might be found during the search, particular circumstances: manner of the search	The search was carried out at night despite the absence of any urgency; the applicant was not a suspect / defendant in the criminal case; the search was conducted as part of a criminal case against the applicant’s son, whose official place of residence was not the applicant’s flat. The courts reasoned that the applicant’s flat was the defendant’s actual place of residence.		7,500
3.	45890/17 13/06/2017	Nikolay Yuryevich BUGLAK 1962	Timofeyev Ivan Aleksandrovich Chita	search under the Code of Criminal Procedure in the applicant’s flat	12/07/2013, Zheleznodorozhnyy District Court of Chita	12/07/2013, judicial review of the decision to issue a search warrant, Zabaykalskiy Regional Court, on 13/12/2016, final decision (appellate court)	no relevant or sufficient reasons to justify the search: no evidence supporting the search authorisation; no reasons given why any relevant objects or documents might be found during the search, applicant was not a suspect			7,500
4.	5518/18 16/01/2018	Yevgeniy Aleksandrovich SILACHEV 1990	Abdrashitov Elik Yevgenyevich Orel	Home search	03/10/2016, Apastovskiy District Court of the Tatarstan Republic	30/09/2016, Supreme Court Tatarstan Republic rejected the appeal complaint on 05/09/2017	no relevant or sufficient reasons to justify the search: no reasonable suspicion as the basis for the search authorisation, no relevant or sufficient reasons to justify the search: applicant was not a suspect, no adequate and sufficient safeguards against abuse: broad terms/wide content and scope of the search warrant (objects and documents not specific enough to restrict police’s discretion)	The search was carried out early in the morning (between 5.15 a.m. to 6.20 a.m.), the applicant was not present during the search, his mother read and signed the relevant record. At the time of the search, the applicant was not officially a suspect. Subsequently the applicant was charged with theft (of cattle).		7,500
5.	13664/18 12/03/2018	Vera Vladimirovna VOLKOVA 1967		Home search (lawyer’s home)	24/03/2017 Moskovskiy District Court of Nizhniy Novgorod	22/03/2017; appeal decision on the search warrant – 28/11/2017, Nizhniy Novgorod Regional Court; on 22/01/2018 the Moscovskiy District Court of Nizhniy Novgorod dismissed the applicant’s complaint under Article 125 of the Code of Criminal Procedure (CCrP) about the authorities’ unlawful actions during the search	no special safeguards for lawyers: no special instructions by a judge regarding privileged materials, no relevant or sufficient reasons to justify the search: applicant not a suspect, no adequate and sufficient safeguards against abuse: broad terms/wide content and scope of the search warrant (objects and documents not specific enough to restrict police’s discretion)	The applicant is an attorney. The search was authorised against her husband who was suspected of committing large-scale fraud.		7,500
6.	43563/18 29/10/2016	Tatyana Aleksandrovna PASHKINA 1953		Home search (lawyer’s home)	24/03/2016 Tsentralniy District Court of Sochi	25/03/2016, appeal against court’s authorisation (Krasnodar Regional Court 12/05/2016), cassation appeal (Krasnodar Regional Court, 29/09/2016)	no special safeguards for lawyers: no special instructions by a judge regarding privileged materials, no relevant or sufficient reasons to justify the search: applicant not a suspect, no evidence supporting the search authorisation, no reasons given why any relevant objects or documents might be found during the search	The application is a lawyer.		7,500
7.	1720/19 24/12/2018	Konstantin Kazimirovich LUBNEVSKIY 1968    ZAO ROSSPETSKOMPLEKT 1900		search under the Operational-Search Activities Act (OSAA), business premises	04/07/2018, Head of Police Department in Krasnogorsk	06/07/2018	no adequate and sufficient safeguards against abuse: no judicial review of the search/search authorisation, no relevant or sufficient reasons to justify the search: applicant not a suspect	the operational search activity covered a search and seizure which could have been conducted only within the framework of the criminal proceedings; no criminal proceedings in respect of the applicants were instituted		7,500
8.	1731/19 17/12/2018	Nadezhda Aleksandrovna ABASHIDZE 1982		search under Code of the Criminal Procedure, living premises (applicant’s flat)	15/05/2018, 18/05/2018, Sovetskiy District Court of Krasnodar	22/05/2018, challenge of the judicial authorisation of the search to no avail (10/07/2018 – the Krasnodar Regional Court as a court of appeal)	no relevant or sufficient reasons to justify the search: minor severity of the offence, no adequate and sufficient safeguards against abuse: broad terms/wide content and scope of the search warrant (objects and documents not specific enough to restrict police’s discretion)	the applicant, mother of a new-born child (born on 27/11/2017); according to the applicant, on 30/12/2017 the investigator agreed to question the applicant at her place of residence	Art. 5 (1) – unlawful deprivation of liberty, including unrecorded detention and detention without a judicial order and any other legal basis – The applicant was taken to the police station for her questioning and was kept there between 10 a.m. and 1.15 p.m. on 22/05/2018 in the absence of summons. No written record of the detention. The applicant challenged the lawfulness of the police actions to no avail under Art.125 CCrP with no success (final – the Krasnodar Regional Court, 07/08/2018).	9,750
9.	2332/19 17/12/2018	Andrey Fedorovich PETROV 1975	Kiryanov Aleksandr Vladimirovich Taganrog	inspection conducted by the Federal Security Service in the applicant’s house, car and land plot as an operative and search measure	18/10/2018, Leninskiy District Court in Rostov-on-Don	19/10/2018	no adequate and sufficient safeguards against abuse: broad terms/wide content and scope of the search warrant (objects and documents not specific enough to restrict police’s discretion)			7,500
10.	3828/19 09/01/2019	Aleksey Sergeyevich BZHEVSKIY 1984		search of the applicant’s home (the applicant resided in the flat under a lease agreement)	18/05/2018, Sovetskiy District Court of Krasnodar	On 11/07/2018 the Sovetskiy District Court of Krasnodar returned the applicant’s appeal without consideration on the merits. No procedural decision was taken by the court.	no relevant or sufficient reasons to justify the search: no evidence supporting the search authorisation, no adequate and sufficient safeguards against abuse: broad terms/wide content and scope of the search warrant (objects and documents not specific enough to restrict police’s discretion)			7,500
11.	41757/19 26/05/2019	Irina Aleksandrovna YANOVITSKAYA 1983		Search of the applicant’s flat in which she had an office	25/09/2018, Leninskiy District Court of Perm	On 27/11/2018 the Perm Regional Court dismissed the applicant’s appeal against the decision of 25/09/2018	no adequate and sufficient safeguards against abuse: broad terms/wide content and scope of the search warrant (objects and documents not specific enough to restrict police’s discretion), no special safeguards for lawyers: no special instructions by a judge regarding privileged materials	The applicant is an attorney		7,500
12.	44389/19 10/08/2019	Vitaliy Vladimirovich VAVILIN 1963	Brovchenko Sergey Vasilyevich Moscow	a flat and a house, urgent search in the absence of judicial authorisation, as part of the criminal investigation against the applicant on the charges of embezzlement	14/11/2018, Investigator of Investigating Committee; authorised by the final decisions of the Moscow City Court of 11/02/2019 and 27/03/2019	31/11/2018; the final decisions recognising the lawfulness of the searches were taken by the Moscow City Court on 11/02/2019 and 27/03/2019.	no relevant or sufficient reasons to justify the search: no evidence supporting the search authorisation, no adequate and sufficient safeguards against abuse: broad terms/wide content and scope of the search warrant (objects and documents not specific enough to restrict police’s discretion)			7,500
13.	20144/20 25/02/2020	Aleksey Viktorovich KARPENKO 1976	Ivanov Aleksey Valeryevich Krasnodar	lawyer’s office	26/06/2019 investigator’s order for urgent search	26/06/2019, 28/06/2019 Oktyabrskiy District Court of Krasnodar; 05/09/2019 Krasnodar Regional Court	no special safeguards for lawyers: no special instructions by a judge regarding privileged materials, no relevant or sufficient reasons to justify the search: applicant not a suspect			7,500
14.	6519/21 28/12/2020	Tatyana Georgiyevna MARTYNOVA 1963	Volokh Valeriy Valeryevich Moscow	search of the flat	16/07/2020, investigator, 17/06/2020 Khamovnicheskiy District Court of Moscow	16/07/2020, Moscow City Court on 21/09/2020	no adequate and sufficient safeguards against abuse: broad terms/wide content and scope of the search warrant (objects and documents not specific enough to restrict police’s discretion), no relevant or sufficient reasons to justify the search: applicant not a suspect			7,500
15.	25412/21 16/04/2021	Ilya Vasilyevich ARISHCHENKOV 1988	Artamonov Aleksandr Vasilyevich Moscow	search of the flat	02/09/2020, investigator, 04/09/2020, Chertanovskiy District Court of Moscow	02/09/2020, Moscow City Court rejected the applicant’s appeal on 01/12/2020	no adequate and sufficient safeguards against abuse: broad terms/wide content and scope of the search warrant (objects and documents not specific enough to restrict police’s discretion)	The applicant is an individual entrepreneur, who provides legal services (no evidence of being a Bar member). The investigation concerns Art. 159 § 4 of the Criminal Code. The Chertanovskiy District Court declared the lawfulness of the search ex post facto.		7,500
16.	32407/21 05/06/2021	Roman Konstantinovich KAMENEV 1979	Brester Aleksandr Aleksandrovich Krasnoyarsk	search under the OSAA, the applicant’s flat	09/12/2020, the Sovetskiy District Court of Krasnoyarsk	date of the search -10/12/2020. The applicant filed a cassation appeal against the decision of 09/12/2020, seeking the full review of the decision to issue a search warrant. On 17/02/2021 the 8th Cassation Court of General Jurisdiction upheld the decision of 09/12/2020.	no adequate and sufficient safeguards against abuse: broad terms/wide content and scope of the search warrant (objects and documents not specific enough to restrict police’s discretion), no relevant or sufficient reasons to justify the search: no evidence supporting the search authorisation			7,500
17.	32550/21 27/05/2021	Ilya Valeryevich KUPTSOV 1989	Kashirin Roman Mikhaylovich Pskov	search of the flat	24/02/2021, Investigator of the Novgorod Region Department of the Federal Security Service, 02/03/2021 Novgorodskiy District Court of the Novgorod Region	25/02/2021, domestic courts declared ex post facto the lawfulness of the search. Novgorod Regional Court, 15/04/2021.	no adequate and sufficient safeguards against abuse: lawyer not allowed to assist the applicant during the search, broad terms/wide content and scope of the search warrant (objects and documents not specific enough to restrict police’s discretion)			7,500
18.	49653/21 18/09/2021	Gleb Sergeyevich BOBARIKO 1991		house	Decision of the investigator of 20/08/2020	20/08/2020; The applicant appealed against the decision of Presnenskiy District Court of Moscow of 24/08/2020, contesting the lawfulness of the search. Moscow City Court dismissed his appeal on 14/04/2021	particular circumstances: manner of the search, no adequate and sufficient safeguards against abuse: broad terms/wide content and scope of the search warrant (objects and documents not specific enough to restrict police’s discretion), no adequate and sufficient safeguards against abuse: lawyer not allowed to assist the applicant during the search, no relevant or sufficient reasons to justify the search: no reasons given why any relevant objects or documents might be found during the search	The criminal case against the applicant was instituted on 06/12/2019 on suspicion of fraud. The search was conducted at night.	Art. 5 (3) – excessive length of pre-trial detention – from 21/08/2020 to 21/07/2021, Presnenskiy District Court of Moscow, the Moscow City Court, fragility of the reasons employed to extend detention; lack of proper examination of alternative measures; Art. 5 (4) – excessive length of judicial review of detention – the appeal of 21/02/2021 against the detention order was examined on 22/03/2021	9,750
19.	50368/21 22/09/2021	Giya Enverovich KAKABADZE 1960	Zubarev Dmitriy Vladimirovich Vladivostok	search of the flat	court search warrant of 05/02/2021 issued by the Pervorechenskiy District Court of Vladivostok	06/02/2021; the Primorye Regional Court, 23/03/2021	no adequate and sufficient safeguards against abuse: broad terms/wide content and scope of the search warrant (objects and documents not specific enough to restrict police’s discretion), no relevant or sufficient reasons to justify the search: applicant not a suspect			7,500
20.	50369/21 22/09/2021 (3 applicants)	Household   Maksim Aleksandrovich KHOZYAYKIN 1986 Kseniya Nikolayevna KHOZYAYKINA 1985 Kira Maksimovna KHOZYAYKINA 2009	Zubarev Dmitriy Vladimirovich Vladivostok	search of the flat	05/02/2021 Pervorechenskiy District Court of Vladivostok	06/02/2021; Primorye Regional Court on 23/03/2021	no relevant or sufficient reasons to justify the search: no evidence supporting the search authorisation, no adequate and sufficient safeguards against abuse: broad terms/wide content and scope of the search warrant (objects and documents not specific enough to restrict police’s discretion)	The applicants are a human rights defender and his wife and daughter. Their flat was searched in the course of the criminal proceedings against participants of “Otpuskay” manifestations.		7,500
21.	52582/21 11/10/2021	Elik Yevgenyevich ABDRASHITOV 1978		House search	16/07/2019, investigator for particularly important criminal cases of the Investigation Committee of the Republic of Tatarstan	16/07/2019, civil compensation claim (final – Supreme Court judgment of 21/02/2022; RUB 50,000 awarded	no special safeguards for lawyers: no presence of independent observers, no special safeguards for lawyers: search conducted by the investigator without the court’s authorisation in circumstances that admitted of no delay	On 19/07/2019 the Sovetskiy District Court of Kazan, reviewing the search order following the investigator’s notification, declared the search unlawful.	Art. 3 – inadequate conditions of detention during transport – train, van; 20/04/2021-11/05/2021; 0.26 sq. m of personal space	8,500
22.	53917/21 18/10/2021 and 54811/21 18/10/2021 and 56808/21 18/10/2021	Household   Liliya Yuryevna TROTSENKO 1961   Yuriy Petrovich TROTSENKO 1961 Yekaterina Yevgenyevna TROTSENKO 1983	Kiryanov Aleksandr Vladimirovich Taganrog	House search; the applicants are family	No court authorisation; the Operational-Search Activities Act	24/08/2021; the applicants were not provided with a copy of the house search authorisation	no relevant or sufficient reasons to justify the search: applicant not a suspect, no adequate and sufficient safeguards against abuse: no judicial review of the search/search authorisation			7,500
23.	55440/21 26/10/2021	Yuliya Valeryevna KULIKOVA 1977	Kozyrev Denis Yevgenyevich Lipovitsy	Search under the Code of the Criminal Procedure, search of offices	14/04/2021, Investigator of the Volokolamsk Town Circuit, 26/04/2021 Volokolamsk Town Court of the Moscow Region	14/04/2021; the applicant complained to the domestic courts under Article 125 of the CCrP. Final – Moscow Regional Court, 24/06/2021	no adequate and sufficient safeguards against abuse: broad terms/wide content and scope of the search warrant (objects and documents not specific enough to restrict police’s discretion), no relevant or sufficient reasons to justify the search: applicant not a suspect, no relevant or sufficient reasons to justify the search: no reasons given why any relevant objects or documents might be found during the search			7,500
24.	57275/21 17/11/2021	Yevgeniya Eduardovna LITVINOVA 1960	Cherkasov Vitaliy Viktorovich St Petersburg	search of the flat	31/01/2021, investigator	31/01/2021; Kuybyshevskiy District Court of St Petersburg, 02/02/2021, St Petersburg City Court, 28/05/2021	no relevant or sufficient reasons to justify the search: applicant not a suspect, no reasons given why any relevant objects or documents might be found during the search, no adequate and sufficient safeguards against abuse: broad terms/wide content and scope of the search warrant (objects and documents not specific enough to restrict police’s discretion)			7,500
25.	58638/21 10/11/2021	Yelena Anatolyevna GRECHINA 1975	Matyukhin Denis Anatolyevich Taganrog	search of the flat	21/07/2021 Taganrog Town Court	06/08/2021, the decision of 21/07/2021 was not amenable to appeal	no relevant or sufficient reasons to justify the search: no evidence supporting the search authorisation, no adequate and sufficient safeguards against abuse: broad terms/wide content and scope of the search warrant (objects and documents not specific enough to restrict police’s discretion)			7,500

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