TREVOGIN AND OTHERS v. RUSSIA - 61147/13 (Article 8 - Right to respect for private and family life : Fifth Section Committee) [2024] ECHR 12 (11 January 2024)

JUDGMENT STRASBOURG 11 January 2024 This judgment is final but it may be subject to editorial revision. In the case of Trevogin and Others v. Russia, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: María Elósegui , President , Mattias Guyomar, Kateřina Šimáčková , judges , and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 7 December 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 secret surveillance in the context of criminal proceedings. Some applicants also raised other complaints under the provisions of the Convention. THE LAW 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. 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, §§ - 73, 17 January 2023). ALLEGED VIOLATION OF ARTICLE 8 of the Convention 7. The applicants complained principally of the secret surveillance in the context of criminal proceedings. They relied, expressly or in substance, on Article 8 of the Convention. 8. 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 would lead the Court to conclude to a violation of the Article 8 of the Convention (see, for example, Dudchenko v. Russia , no. 37717/05 , §§ - 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). 9. The Court further refers to its earlier findings that (1) 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 (see Bykov v. Russia [GC], no. 4378/02 , §§ - 83, 10 March 2009) and (2) the refusal on the part of the domestic authorities to disclose a surveillance authorisation to the applicants without a valid reason deprived them of any possibility to have the lawfulness of the surveillance measures and their "necessity in a democratic society" reviewed and amounted to a violation of Article 8 of the Convention (see, among other authorities, Šantare and Labazņikovs v. Latvia , no. 34148/07 , §§ 60-62, 31 March 2016; Radzhab Magomedov v. Russia , no. 20933/08 , §§ 80-84, 20 December 2016; and Zubkov and Others , cited above, §§ 122-32). 10. 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 ). 11. 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 cases under consideration (1) 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 and (2) the domestic 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. Moreover, (3) the refusal to disclose the surveillance authorisation to the applicants without any valid reason deprived them of any possibility to have the lawfulness of the measure, and its "necessity in a democratic society", reviewed by an independent tribunal in the light of the relevant principles of Article 8 of the Convention. 12. These complaints are therefore admissible and disclose a breach of Article 8 of the Convention. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 13. 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 § (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, among other authorities, Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08 , §§ 113-39, ECHR 2014 (extracts), concerning placement in a metal cage in a courtroom during criminal proceedings, Idalov v. Russia [GC], no. 5826/03 , §§ 139-49 and 154 - 58, 22 May 2012, regarding length and speediness of review of pre-trial detention, Karelin v. Russia , no. 926/08 , 20 September 2016, concerning absence of a prosecuting party from the administrative proceedings, Misan v. Russia , no. 4261/04 , §§ 53-64, 2 October 2014, related to a search of the applicant's home conducted in the absence of safeguards, and Konstantin Moskalev v. Russia, no. 59589/10 , §§ 23-36, 7 November 2017, concerning the lack of an effective remedy in respect of the complaint about the secret surveillance). 14. In view of the above findings, the Court considers that there is no need to deal separately with the complaints lodged by some applicants under Article 13 of the Convention about the lack of effective domestic remedies to complain about the placement in a metal cage in courtrooms (compare Valyuzhenich v. Russia , no. 10597/13 , § 27, 26 March 2019). APPLICATION OF ARTICLE 41 OF THE CONVENTION 15. 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, Dudchenko, both cited above, Moskalev v. Russia, no. 44045/05 , 7 November 2017, and Konstantin Moskalev, cited above), the Court considers it reasonable to award the sums indicated in the appended table. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Holds that it has jurisdiction to deal with these applications as they relate to facts that took place before 16 September 2022; Declares the applications admissible; Holds that these applications disclose a breach of Article 8 § 1 of the Convention concerning the secret surveillance in the context of criminal proceedings; Holds that there has been a violation of the Convention as regards the other complaints raised under the well-established case-law of the Court (see the appended table); Holds that it is not necessary to examine separately the complaints lodged under Article 13 of the Convention about the lack of effective domestic remedies to complain about the placement in a metal cage in courtrooms; 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 11 January 2024, pursuant to Rule §§ 2 and 3 of the Rules of Court. Viktoriya Maradudina María Elósegui 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 Other relevant information 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) [1] 61147/13 15/08/2013 Yevgeniy Yuryevich TREVOGIN Kuznetsov Roman Valeryevich Murmansk audio and video recording of the alleged perpetrators' communication as part of the operative experiment 20/05/2011 police department no.1, Murmansk; 13/06/2011 - police department no.1, Murmansk; 16/06/2011 - police department no.1, Murmansk The applicant's conviction of drug dealing was upheld on appeal by the Murmansk Regional Court on 21/06/2013 the use of "surveillance" or "operative experiment" measures not accompanied by sufficient safeguards against arbitrariness ("quality of law"), no judicial authorisation of the surveillance measures 7,500 16492/18 21/03/2018 Bogdan Antonovich NAUMENKO Korchuganova Natalya Vladimirovna Moscow interception of telephone communications 19/03/2015 and 31/03/2015 Novosibirsk Regional Court The applicant was found guilty of drug dealings. The information obtained as a result of interception of telephone communications was used in his trial. His conviction was upheld on appeal on 11/10/2017 by the Novosibirsk Regional Court the courts did not verify the existence of a "reasonable suspicion" and did not apply the "necessity in a democratic society test" 7,500 48812/19 09/09/2019 Sergey Leonidovich ZHOLOBETSKIY interception of telephone communications, collection of data from technical channels of communication 27/04/2017, Kemerovo Regional Court Information obtained by the interception served a ground for the applicant's dismissal from police, challenged in courts to no avail, final decision by the Supreme Court of the Russian Federation, on 02/04/2019 the courts did not verify the existence of a "reasonable suspicion" and did not apply the "necessity in a democratic society test" 7,500 13490/20 18/02/2020 Valeriy Fralyevich KARGAYEV Kiryanov Aleksandr Vladimirovich Taganrog interception of telephone communications, collection of data from technical channels of communication the measures were applied since 14/08/2018, the end date is unclear. On 25/11/2019 the applicant's request to provide him a copy of the decision authorising surveillance was dismissed the applicant was refused access to the decisions authorising secret surveillance measures against him Art. 3 - use of metal cages and/or other security arrangements in courtrooms - placement of the applicant in a metal cage in the hearigs before the Leninskiy Distrcit Court of Rostov-on-Don, from 18/10/2019 to 30/12/2019, Art. 5 (3) - excessive length of pre-trial detention - during the period from 17/10/2019 to 12/05/2020, courts authorising and extending detention: Leninskiy Distrcit Court of Rostov-on-Don and Rostov Regional Court - charged with abuse of power - Specific defects: failure to examine the possibility, as the case progressed, of applying other measures to secure attendance at the trial, Art. 5 (4) - excessive length of judicial review of detention - the appeal against the detention order of 30/12/2019 (appeal lodged on the same date) was examined on 24/01/2020 (25 days), Art. 13 - lack of any effective remedy in domestic law in respect of interception of telephone communications, collection of data from technical channels of communication 9,750 50256/21 30/09/2021 Kunay Avaz kyzy ABBASOVA Brester Aleksandr Aleksandrovich Krasnoyarsk interception of telephone communications 03/07/2019 Tsentralnyy District Court of Krasnoyarsk the applicant, an attorney at the relevant time, learnt about the interception on 14/04/2021 the use of "surveillance" or "operative experiment" measures not accompanied by sufficient safeguards against arbitrariness ("quality of law"), the courts did not verify the existence of a "reasonable suspicion" and did not apply the "necessity in a democratic society test" Art. 13 - lack of any effective remedy in domestic law in respect of interception of telephone communication 7,500 1292/22 17/12/2021 Aleksandr Mikhaylovich VAKULENKO Kiryanov Aleksandr Vladimirovich Taganrog interception of telephone communications 26/05/2021, 08/06/2021, 06/07/2021, 14/07/2021, 20/07/2021, 30/07/2021, 10/08/2021,19/08/2021, Leninskiy District Court of Rostov-on-Don The applicant learned of the interception from the materials prepared by the police on 10/09/2021 proposing to institute criminal proceedings on the basis of the information obtained as a result of the interception of telephone communications between the applicant and other alleged perpetrators; the criminal proceedings were instituted on 13/09/2021 the applicant was refused access to the decisions authorising secret surveillance measures against him, the courts did not verify the existence of a "reasonable suspicion" and did not apply the "necessity in a democratic society test" Art. 13 - lack of any effective remedy in domestic law - in respect of interception of phone communications, Art. 5 (3) - excessive length of pre-trial detention - Pre - trial detention since 24/09/2021, pending as of 16/09/2022, authorised by the Zheleznodorozhnyy District Court of Rostov-on-Don and Rostov Regional Court: failure to examine the possibility of applying other measures of restraint failure to assess the applicant's personal situation reducing the risks of re-offending, colluding or absconding 9,750 3168/22 17/12/2021 Konstantin Nikolayevich MOGILEV Kiryanov Aleksandr Vladimirovich Taganrog interception of telephone communications 26/05/2021, 08/06/2021, 06/07/2021, 14/07/2021, 20/07/2021, 30/07/2021, 10/08/2021, 19/08/2021 Leninskiy District Court of Rostov-on-Don The applicant learned of the interception from the materials prepared by the police on 10/09/2021 proposing to institute criminal proceedings on the basis of the information obtained as a result of the interception of telephone communications between the applicant and other alleged perpetrators; the criminal proceedings were instituted on 13/09/2021 the applicant was refused access to the decisions authorising secret surveillance measures against him, the courts did not verify the existence of a "reasonable suspicion" and did not apply the "necessity in a democratic society test" Art. 13 - lack of any effective remedy in domestic law in respect of interception of telephone communications, Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - 24/08/2021, Aksayskiy District Court of Rostov-on-Don, 20/10/2021, Rostov Regional Court, 10 - days administrative detention 8,500 7742/22 16/01/2022 Viktoriya Andreyevna KONONENKO Kiryanov Aleksandr Vladimirovich Taganrog interception of telephone communications 26/05/2021, 08/06/2021, 06/07/2021, 14/07/2021, 20/07/2021, 30/07/2021, 10/08/2021, 19/08/2021 Leninskiy District Court of Rostov-on-Don Lack of access to the judicial decision authorising interception of telephone communications. On 29/10/2021 the investigator informed the applicant that she can familiarise with the court decisions as soon as the preliminary investigation is over. Apparently, there are several court orders on the interception. the applicant was refused access to the decisions authorising secret surveillance measures against her, the courts did not verify the existence of a "reasonable suspicion" and did not apply the "necessity in a democratic society test" Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - final decision taken on 13/10/2021 by the Rostov Regional Court, 5 days' administrative detention, Art. 13 - lack of any effective remedy in domestic law in respect of interception of telephone communications 8,500 8106/22 16/01/2022 Roman Yuryevich TROTSENKO Kiryanov Aleksandr Vladimirovich Taganrog interception of telephone communications, collection of data from technical channels of communication 26/05/2021, 08/06/2021, 06/07/2021, 14/07/2021, 20/07/2021, 30/07/2021, 10/08/2021, 19/08/2021 Leninskiy District Court of Rostov-on-Don Lack of access to the judicial decisions authorising interception of telephone communications. On 29/10/2021 the investigator informed the applicant that he could familiarise himself with the court orders as soon as the preliminary investigation is over. the applicant was refused access to the decisions authorising secret surveillance measures against him, the courts did not verify the existence of a "reasonable suspicion" and did not apply the "necessity in a democratic society test" Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - final decision taken on 27/09/2021 by the Rostov Regional Court,14 days' administrative detention, Art. 13 - lack of any effective remedy in domestic law in respect of interception of telephone communication and unlawful searches 8,500 15963/22 25/02/2022 Pavel Pavlovich ZAYFERT Kiryanov Aleksandr Vladimirovich Taganrog interception of telephone communications 09/04/2020, Proletarskiy District Court of Rostov-on-Don The applicant was not a suspect at the moment of the interception authorisation. He was informed about the District Court's decision on 07/10/2021 when he was questioned by an investigator. On 28/10/2021 the criminal proceedings were initiated against him. The applicant was not granted access to the District Court's decision. lack of safeguards in case of accidental interception of a suspect's communications with counsel ("quality of law"), the applicant was refused access to the decisions authorising secret surveillance measures against him Art. 13 - lack of any effective remedy in domestic law in respect of interception of telephone communications 7,500 38745/22 29/07/2022 Sergey Valentinovich BOSTYAKOV Kashirin Roman Mikhaylovich Pskov collection of data from technical channels of communication, interception of telephone communications, obtaining computer information, interception of telephone communications 28/02/2022, Pskov Regional Court The applicant found out about secret surveillance after its results were declassified by officials and enclosed in the criminal case file (decision of 31/05/2022) the courts did not verify the existence of a "reasonable suspicion" and did not apply the "necessity in a democratic society test" Art. 8 (1) - unlawful search - Search of the applicant's home; Date of the search authorisation and issuing authority: 31/05/2022, Pskov District Court of the Pskov Region; Date of search: 27/05/2022; Means of exhaustion: The applicant appealed against the court authorisation of the Pskov District Court of Pskov Region of 31/05/2022 and the decision was upheld by the Pskov Regional Court on appeal on 13/07/2022. Specific defects: no relevant or sufficient reasons to justify the search: no evidence supporting the search authorisation, no relevant or sufficient reasons to justify the search: no reasons given why any relevant objects or documents might be found during the search, 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 adequate and sufficient safeguards against abuse: no judicial review of the search/search authorisation 9,750 [1] Plus any tax that may be chargeable to the applicants. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII