Last Updated on November 4, 2019 by LawEuro
Information Note on the Court’s case-law 215
February 2018
Ivashchenko v. Russia – 61064/10
Judgment 13.2.2018 [Section III]
Article 8
Article 8-1
Respect for private life
Customs control’s power to search and copy individuals’ electronic data without reasonable suspicion of wrongdoing: violation
Facts – The applicant, a Russian photojournalist, had travelled to Abkhazia to prepare a report. Upon returning to Russia he was stopped at a customs checkpoint and told there was a need to verify the information contained in his customs declaration by way of an “inspection procedure” in respect of the items in his bag and backpack.
The customs officials under the authority of domestic legislation examined data contained on the applicant’s laptop and first copied the data to a mobile or external hard drive and then recopied to six DVDs. Subsequently, the applicant was informed that a report had been commissioned from a criminal forensics expert to determine whether the data copied from his laptop had any prohibited “extremist” content (the results proved negative). The applicant sought judicial review of the customs officials’ acts but to no avail.
In the Convention proceedings, the applicant complained, inter alia, under Article 8 of the Convention that the customs authorities had unlawfully and without any valid reasons examined and copied the electronic data contained on his laptop.
Law – Article 8: There being insufficient elements to conclude that the applicant’s “correspondence” had been adversely affected by the customs officers’ actions, the Court considered it more appropriate to focus on the notion of “private life”.
Distinguishing Gillan and Quinton v. the United Kingdom, the Court noted that the search of the applicant’s laptop (allegedly without any reasonable suspicion of any offence or unlawful conduct), the copying of his personal and professional data followed by its communication for a specialist assessment, and the retention of his data for some two years had gone beyond what could be perceived as procedures that were “routine”, relatively non-invasive and for which consent was usually given. The applicant had not able to choose whether he wanted to present himself and his belongings to customs and a possible customs inspection.
The case concerned the context of customs controls for “goods” carried by a person arriving at customs to declare items rather than the context of security checks, in particular checks carried out in relation to a person and his or her effects prior to admission to an aircraft, train or the like. In the Court’s view, by submitting his effects to customs controls a person does not automatically and in all instances waive or otherwise forgo the right to respect for his or her “private life” or, as the case may be, “correspondence”. It was thus open to the applicant to rely on the right to respect for his private life and there had been an interference under Article 8 of the Convention.
The Court went on to consider whether the interference was justified. Having regard to the reasoning of the domestic decisions, the Court was not satisfied that the combined reading of the relevant provisions of the Customs Code and other legal rules constituted a foreseeable interpretation of national law and provided a legal basis for the copying of electronic data contained in electronic documents located in “container” such as a laptop.
In addition, the safeguards provided by Russian law had not constituted an adequate framework for the wide powers afforded to the executive which could offer individuals adequate protection against arbitrary interference.
Firstly, the Court was not satisfied that there was a clear requirement at the authorisation stage that the inspection and, first and foremost, the copying be subjected to a requirement of any assessment of the proportionality of the measure. It was evident that the usual approach to the sampling by customs of “goods” was not adequate as regards electronic data.
Secondly, it did not appear that the comprehensive measure used in the applicant’s case had to be based on some notion of a reasonable suspicion that someone making a customs declaration had committed an offence. That apparent lack of any need for reasonable suspicion relating to an offence was exacerbated by the fact that the domestic authorities, ultimately the courts on judicial review, did not attempt to define and apply notions from the relevant domestic legislation* such as “propaganda for fascism” or “social, racial, ethnic or religious enmity” to any of the ascertained facts.
Thirdly, the Court was not convinced that the fact that the applicant was returning from a disputed area (Abkhazia) constituted in itself a sufficient basis for proceeding with the extensive examination and copying of his electronic data on account of possible “extremist” content.
Lastly, although the exercise of the powers to inspect and sample was amenable to judicial review, the width of those powers was such that the applicant faced formidable obstacles in showing that the customs officers’ actions were unlawful, unjustified or otherwise in breach of Russian law. The Court had noted in the freedom of assembly case of Lashmankin and Others v. Russia that the scope of judicial review was limited and failed to apply the requisite “proportionality” and “necessary in a democratic society” tests. That assessment was applicable in the context of the adverse decisions and actions taken by the customs authorities in the instant case in relation to the copying of electronic data, as challenged by the applicant in the judicial review proceedings.
There were thus deficiencies in the domestic regulatory framework as the domestic authorities, including the courts, were not required to give relevant and sufficient reasons for justifying the interference in the present case and did not consider it relevant, at any stage or in any manner, that the applicant was carrying journalistic material.
In sum, the respondent Government had not convincingly demonstrated that the relevant legislation and practice afforded adequate and effective safeguards against abuse in a situation where the sampling procedure was used in relation to electronic data stored on an electronic device. The interference was not, therefore, “in accordance with the law”.
Conclusion: violation (unanimously).
Article 41: EUR 3,000 in respect of non-pecuniary damage.
(See Gillan and Quinton v. the United Kingdom, 4158/05, 12 January 2010, Information Note 126; and Lashmankin and Others v. Russia, 57818/09 et al, 7 February 2017, Information Note 204)
* See Presidential Decree no. 310 of 23 March 1995 “on measures for ensuring consolidated actions by public authorities in the fight against manifestations of fascism and other forms of political extremism in the Russian Federation”.
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