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FIRST
SECTION
CASE OF KOLESNICHENKO v. RUSSIA
(Application
no. 19856/04)
JUDGMENT
STRASBOURG
9 April
2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kolesnichenko v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 19 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19856/04) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Aleksey Petrovich
Kolesnichenko (“the applicant”), on 4 May 2004.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, former Representative of the Russian Federation at
the European Court of Human Rights.
- The
applicant alleged, in particular, a violation of the right to respect
for his home.
- On
12 September 2006 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government’s
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1962 and lives in Perm. At the material time he
was a practising advocate and member of the Perm Regional Bar.
- On
10 June 2003 the prosecutor of the Sverdlovskiy District of Perm
opened an investigation into theft of property by a Mr S. The theft
had been allegedly committed through the use of forged documents. The
applicant acted as counsel for Mr S. in the criminal proceedings
against him.
- The
investigator suspected that the documents allegedly forged by Mr S.
and a procedural application made by the applicant in the criminal
proceedings against Mr S. had been printed on the same device. He
commissioned an expert to study those documents. On 21 August 2003
the expert reported that the allegedly forged document and the
applicant’s application could have been printed “on the
same printing device or on different devices having the same or
higher resolution...” The expert specified that it was
impossible to make any conclusive findings because “the
documents did not contain any singularities that could permit
identification of the printing device”.
- On
9 February 2004 the investigator asked the Sverdlovskiy District
Court of Perm to issue search warrants for the applicant’s home
in Gorky Street and his late parents’ flat in Kuybyshev Street.
- On
12 February 2004 the Sverdlovskiy District Court of Perm granted the
investigator’s request and issued two warrants authorising
searches at the applicant’s and his late parents’ flats.
The entire reasoning of the first warrant concerning the Gorky Street
reads as follows:
“The investigator... has submitted an application
for a search warrant at the address... which is the place of
residence of Mr Kolesnichenko, an advocate with the Perm Regional Bar
Association. The investigator argues that certain documents allegedly
prepared by Mr G.S. had not in fact been drafted by him but rather
fabricated by an electrophotographic process with the probable use of
the same device as that used for preparing an application by the
advocate Mr Kolesnichenko. This fact is confirmed by an expert
report; accordingly, the investigation believes that certain objects
of relevance for the investigative acts and the criminal case may be
located at that address.
Having studied the materials produced at the hearing,
the court considers that the application should be granted because it
is reasoned. Since no criminal proceedings have been instituted
against the advocate Mr Kolesnichenko and no charges have been
levelled against him, the investigator’s application for a
search warrant was lodged in accordance with law.
Sufficient information was submitted to the court in
support of the application and, in these circumstances, there are
grounds for authorising a search in Mr Kolesnichenko’s
residence located at [the address on Gorky Street].”
The
reasoning of the second warrant concerning Kuybyshev Street was
identical, save for the mention that the address in Kuybyshev Street
was the registered place of residence of the applicant’s late
parents and also the registered address of the applicant’s
office.
- At
9.40 p.m. on the same day the investigator, accompanied by police
officers and two attesting witnesses (ponyatye), came to the
applicant’s home in Gorky Street. He asked the applicant to
hand over the copying device, which the applicant did.
- The
investigator and officers then searched the applicant’s flat
and seized two computers containing the applicant’s private and
professional data, a printer, his personal notebook, certain
documents relating to the criminal case against Mr S. and to other
cases, three business card holders, and other items.
- The
search at the applicant’s residence ended at 4 a.m. on
13 February 2004. The investigator and the police then proceeded
to search the flat in Kuybyshev Street.
- According
to the search and seizure report of 12 February 2004, the purpose of
the search was to find and seize “copying devices (printers,
copiers) [and] documents relevant to the criminal case”.
- On
16 February 2004 the applicant lodged a complaint with the
Sverdlovskiy District Court. He submitted that the investigator had
unlawfully seized belongings of his which were not referred to in the
search warrants of 12 February 2004. As a consequence he had been
unable to carry on his professional activities and his clients’
right to defence had also been impaired.
- On 3 March 2004 the Sverdlovskiy District Court of
Perm dismissed the applicant’s complaint, finding as follows:
“The judicial decision of 12 February 2004
authorised a search of the flat in Gorky Street. It follows from the
[investigator’s] application for a search warrant and the
judicial decision that the search was necessary because there were
sufficient reasons to believe that certain objects relevant to the
criminal case could be found at the advocate Mr Kolesnichenko’s
home. The judicial decision did not contain any concrete list of
objects or documents. Thus, the claimant’s argument that the
investigator seized objects and documents which had not been listed
in the judicial decision, is unsubstantiated.”
- It
appears that on 26 March, 1, 14 and 27 April 2004 certain seized
objects and documents were returned to the applicant.
- On 27 April 2004 the Perm Regional Court upheld the
District Court’s decision on appeal. It noted that on 12
February 2004 the District Court authorised search and seizure of
unspecified objects and documents and for that reason the
investigator had the discretion to determine which objects and
documents were relevant to the criminal case. The objects and
documents which had been found to be irrelevant had been returned to
the applicant.
II. RELEVANT DOMESTIC LAW
- Article 25 of the Constitution establishes that the
home is inviolable. No one may penetrate into the home against the
wishes of those who live there unless otherwise provided for in a
federal law or a judicial decision.
- The Code of Criminal Procedure of the Russian
Federation establishes that a search may be carried out if there are
sufficient grounds to believe that instruments of a crime, objects,
documents or valuables having relevance to a criminal case could be
found in a specific place or on a specific person (Article 182 §
1). A search of a place of residence requires a judicial warrant
issued on the basis of an application by the investigator (Article
165).
- Investigative
actions, such as a search, may not be carried out at night except in
emergency situations (Article 164 § 3). Night is defined as the
period between 10 p.m. and 6 a.m. local time (Article 5 (21)).
- Prior to starting the search, the investigator offers
the residents the opportunity to surrender voluntarily objects,
documents or valuables which are of relevance to the criminal case.
If such objects have been handed over voluntarily the investigator
may decide not to proceed with the search (Article 182 § 5).
- Upon
permission of the investigator, counsel and/or advocate for the
person in whose premises the search is being carried out may be
present during the search (Article 182 § 11).
- Residential
and professional premises of an advocate may only be searched on the
basis of a judicial decision. The information, objects and documents
obtained during the search may be used in evidence only if they are
not covered by the attorney-client privilege in a given criminal case
(section 8 § 3 of the Advocates Act, Law no. 63-FZ of 31 May
2002).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the search at his home and office had been
carried out in breach of his right to respect for his home guaranteed
under Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
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.”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Submissions by the parties
- The
applicant emphasised that the domestic authorities had been aware of
his special status as an advocate because it had been mentioned in
the search warrant. That awareness notwithstanding, they had
proceeded to search his residence and his office and to seize his
files, which had interfered with his professional activities. The
applicant pointed out that the search had begun at 9.40 p.m. and
obviously could not be completed by 10 p.m., whereas the
domestic law prohibited night-time searches, the night time being
defined as after 10 p.m.
- The
Government submitted that the search had been conducted in accordance
with law since the domestic law did not contain a prohibition on
searching the advocate’s premises, on condition that there
existed a judicial warrant, since the procedure for conducting the
search had been complied with, and since the search had begun before
the onset of night time. The investigation had had valid grounds to
suspect the applicant of having been involved in fraud; that
suspicion had been corroborated by an expert report.
2. The Court’s assessment
- The Court observes that the search was carried out at
two addresses: firstly in the flat on Gorky Street where the
applicant had his registered residence and subsequently in the flat
on Kuybyshev Street where the applicant had a registered office. The
Court has consistently interpreted the notion of “home”
in Article 8 § 1 as covering both private individuals’
homes and professional persons’ offices (see Buck v.
Germany, no. 41604/98, § 31, ECHR 2005 IV,
and Niemietz v. Germany, judgment of 16 December 1992,
Series A no. 251 B, pp. 33-34, §§ 29-31).
It follows that in the present case both searches amounted to an
interference with the applicant’s right to respect for his
home.
- The
Court has next to determine whether the interference was justified
under paragraph 2 of Article 8, that is, whether it was “in
accordance with the law”, pursued one or more of the legitimate
aims set out in that paragraph and was “necessary in a
democratic society” to achieve that aim or those aims. Given
that the searches were authorised by the judicial decisions as
required by Article 165 of the Code of Criminal Procedure, and
purported to uncover evidence in a fraud case, the Court is prepared
to accept that they were lawful in domestic terms and pursued the
legitimate aim of the prevention of crime. What remains to be
examined is whether they were “necessary in a democratic
society”.
- The
Court has repeatedly held that persecution and harassment of members
of the legal profession strikes at the very heart of the Convention
system. Therefore the searching of lawyers’ premises should be
subject to especially strict scrutiny (see Elci and Others
v. Turkey, nos. 23145/93 and 25091/94, § 669, 13
November 2003). To determine whether these measures were “necessary
in a democratic society”, the Court has to explore the
availability of effective safeguards against abuse or arbitrariness
under domestic law and to check how those safeguards operated in the
specific case under examination. Elements taken into consideration in
this regard are the severity of the offence in connection with which
the search and seizure have been effected, whether they were carried
out pursuant to a warrant issued by a judge or a judicial officer –
or subjected to after-the-fact judicial scrutiny –, whether the
warrant was based on reasonable suspicion and whether its scope was
reasonably limited. The Court must also review the manner in which
the search was executed, and – where a lawyer’s office is
concerned – whether it was carried out in the presence of an
independent observer to ensure that material subject to legal
professional privilege is not removed. The Court must finally take
into account the extent of the possible repercussions on the work and
the reputation of the persons affected by the search (see Camenzind
v. Switzerland, 16 December 1997, § 45, Reports of
Judgments and Decisions 1997-VIII; Buck, cited above, §
45; Smirnov v. Russia, no. 71362/01, § 44, ECHR
2007-...; and Wieser and Bicos Beteiligungen GmbH v. Austria,
no. 74336/01, § 57, ECHR 2007 ...).
- Turning
to the present case, the Court observes that the search warrants of
12 February 2004 were issued by the District Court on an application
by the investigator. It follows from the text of the search warrants
that the only piece of evidence submitted by the investigator in
support of his application was the report by an expert who had been
commissioned to compare the documents prepared by Mr S. and by the
applicant with a view to determining whether they could have been
prepared on the same printing device. The report indicated that no
reliable finding could be drawn because the documents lacked any
distinctive marks which could have permitted identification of the
printing device (see paragraph 8 above). In his application, the
investigator did not explain how the seizure of the printing device
from the applicant’s home or office could have furthered the
investigation in the absence of any distinctive marks on the
documents capable of ensuring identification of the specific device.
The investigator did not refer to any evidence which could have
corroborated his conjecture that the applicant was involved in the
printing of the documents allegedly forged by Mr S. The District
Court, for its part, merely acknowledged the existence of the report
without analysing its contents and findings. Whilst acknowledging
that the applicant was an advocate and that he had not been charged
or accused of any criminal offence or unlawful activities, the
District Court did not examine whether the material gathered by the
investigation was capable of founding a reasonable suspicion that he
was implicated in the fraud allegedly organised by Mr S. The Court
finds therefore that the search warrants were not founded on
“relevant and sufficient” reasons.
- The
Court further notes that the search warrants did not specify what
objects or documents were expected to be found at the applicant’s
home or office or how they would be relevant to the investigation.
They allowed the investigative authorities to carry out searches in
the applicant’s home and office in general and broad terms
(compare Niemietz, cited above, § 37; Smirnov,
cited above, § 47; and Ernst and Others v. Belgium,
no. 33400/96, § 116, 15 July 2003). The subsequent
judicial review confirmed that the search warrants had not referred
to “any concrete list of objects or documents” and that
the investigator therefore had unrestricted discretion in determining
which documents were “of interest” for the criminal
investigation (see paragraphs 16 and 18 above). Moreover, in issuing
the warrant the judge did not touch upon the issue of whether
privileged material was to be safeguarded, although he was aware –
as was mentioned in the text of the search warrants – that the
applicant was a bar member and could have possessed documents given
to him by his clients. According to the Court’s case-law,
search warrants have to be drafted, as far as practicable, in a
manner calculated to keep their impact within reasonable bounds (see
Iliya Stefanov v. Bulgaria, no. 65755/01, § 41, 22
May 2008, and Van Rossem v. Belgium, no. 41872/98, § 45,
9 December 2004). This requirement was manifestly disregarded in
the present case.
- The
Court finally observes that the warrant’s excessive breadth was
reflected in the way in which it was executed. After the
applicant had voluntarily handed over the copying device at the
request of the investigator, the latter nevertheless proceeded with a
thorough search of the premises at both Gorky and Kuybyshev Streets,
and seized the applicant’s computers with peripherals, personal
and professional records, business cards and other objects. The Court
notes that during the search there was no safeguard in place against
interference with professional secrecy, such as, for example, a
prohibition on removing documents covered by lawyer-client privilege
or supervision of the search by an independent observer capable of
identifying, independently of the investigation team, which documents
were covered by legal professional privilege (see Sallinen and
Others v. Finland, no. 50882/99, § 89,
27 September 2005, and Tamosius v. the United Kingdom
(dec.), no. 62002/00, ECHR 2002-VIII). The presence of two
attesting witnesses obviously could not be considered a sufficient
safeguard, given that they were laymen who had no legal qualification
and were unable to detect privileged material (see Iliya Stefanov,
cited above, § 43). Moreover, as regards the electronic data
contained in the applicant’s computers which were seized by the
investigator, it does not seem that any sort of sifting procedure was
followed during the search (see Wieser and Bicos Beteiligungen
GmbH, cited above, § 63).
- Having
regard to the materials that were inspected and seized, the Court
finds that the search impinged on professional secrecy to an extent
that was disproportionate to whatever legitimate aim was pursued. The
Court reiterates in this connection that, where a lawyer is involved,
an encroachment on professional secrecy may have repercussions on the
proper administration of justice and hence on the rights guaranteed
by Article 6 of the Convention (see Smirnov, § 48, and
Niemietz, § 37, both cited above).
- In
sum, the Court considers that the search carried out, without
relevant and sufficient grounds and in the absence of safeguards
against interference with professional secrecy, at the flat and
office of the applicant, who was not suspected of any criminal
offence but was representing the defendant in the same criminal case,
was not “necessary in a democratic society”. There has
therefore been a violation of Article 8 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
relying on Articles 3, 6, 10 and 13 of the Convention, the applicant
complained that carrying out the search during the night was inhuman,
that the examination of his complaint was unfair, that he had been
persecuted for expressing an opinion on the lawful actions of the
police, and that there was no effective remedy for his grievances.
- However,
having regard to all the material in its possession, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols. It follows
that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- The
applicant claimed 1,000,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government submitted that the claim was ill-founded and evidently
excessive.
- The
Court accepts that the applicant has suffered non-pecuniary damage,
such as distress and frustration in connection with a breach of his
right to respect for his home, which is not sufficiently compensated
for by the finding of a violation of the Convention. However, it
finds the amount claimed by the applicant excessive. Making its
assessment on an equitable basis, the Court awards the applicant EUR
3,000 under this head, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant also claimed 332.70 Russian roubles for postal expenses. He
produced copies of postal receipts.
- The
Government submitted that the claim was unfounded.
- On
the basis of the material produced before it, the Court is satisfied
that the expenses claimed were actually incurred and are reasonable
as to quantum. Accordingly, the Court awards the applicant the entire
amount claimed, that is EUR 10, plus any tax that may be chargeable
to him.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the complaint concerning the search at
the applicant’s premises admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
the following amounts, to be converted into Russian roubles at the
rate applicable at the date of settlement:
(i) EUR
3,000 (three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
10 (ten euros), plus any tax that may be chargeable to the applicant,
in respect of costs and expenses;
(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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 9 April 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
