European Court of Human Rights

 

 

THIRD SECTION

CASE OF AGORA AND OTHERS v. RUSSIA

(Applications nos. 28539/10 and 2 others –
see appended list)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

13 October 2022

 

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

In the case of Agora and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Darian Pavli, President,

          Andreas Zünd,

          Frédéric Krenc, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 15 September 2022,

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 searches of their professional premises. They 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.     ALLEGED VIOLATION OF ARTICLE 8 § 1 of the Convention

6.  The applicants complained principally of searches of their professional premises. They relied, expressly or in substance, on Article 8 § 1 of the Convention, which reads as follows:

Article 8 § 1

“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.”

7.  The Court reiterates that searches of the applicants’ homes amount to an interference with their rights under Article 8 § 1 of the Convention. To be justified under Article 8 § 2 of the Convention an interference has to be in accordance with law, to pursue a legitimate aim and to be necessary in a democratic society.

8.  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, searches of lawyers’ homes or offices should be subject to especially strict scrutiny. To determine whether the measures were “necessary in a democratic society”, the Court has to ascertain whether effective safeguards against abuse or arbitrariness were available under domestic law and how those safeguards operated in the specific cases under examination. Elements to be taken into consideration in this regard are the severity of the offence in connection with which the search and seizure were effected, whether they were carried out pursuant to an order issued by a judge or a judicial officer or subjected to after-the-fact judicial scrutiny, whether the order 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, including - where a lawyer’s office is concerned - whether it was carried out in the presence of an independent observer or whether other special safeguards were available to ensure that material covered by legal professional privilege was not removed. The Court must lastly take into account the extent of the possible repercussions on the work and the reputation of the persons affected by the search (see Kruglov and Others v. Russia, nos. 11264/04 and 15 others, § 125, 4 February 2020, with further references).

9.  The Court reiterates that in a number of previous Russian cases it was the vagueness and excessively broad terms of search warrants giving the authority executing them unrestricted discretion in determining the scope of the search that were considered to constitute the decisive element for the finding of a violation of Article 8 of the Convention (see Kruglov and Others, cited above, § 127, with further references).

10.  Another decisive aspect in the Court’s assessment of the necessity of an interference are the procedural safeguards available to an applicant. In a number of cases concerning searches of lawyers’ premises the Court has established the lack of procedural safeguards capable to prevent interference with professional secrecy (see Smirnov v. Russia, no. 71362/01, § 44 and 48, 7 June 2007; Kolesnichenko v. Russia, no. 19856/04, §§ 31-35, 9 April 2009; Yuditskaya and Others v. Russia, no. 5678/06, §§ 27-31, 12 February 2015; and Kruglov and Others, cited above, § 132) and found a violation of Article 8 of the Convention.

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 the complaints in the present cases. Having regard to its case-law on the subject, the Court considers that in the instant case the searches of the applicants’ professional premises were not necessary in a democratic society.

12.  These complaints are therefore admissible and disclose a breach of Article 8 § 1 of the Convention.

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

13.  In application no. 25142/19 the applicant 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 findings in Dirdizov v. Russia, no. 41461/10, §§ 108-10, 27 November 2012 and Idalov v. Russia [GC], no. 5826/03, §§ 154-58, 22 May 2012.

IV.  REMAINING COMPLAINTS

14.  In applications nos. 28539/10 and 40035/18 the applicants also raised other complaints under various Articles of the Convention.

15.  The Court has examined the applications and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

16.  It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.

V.    APPLICATION OF ARTICLE 41 OF THE CONVENTION

17.  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.”

18.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Misan v. Russia, no. 4261/04, § 70, 2 October 2014), the Court considers it reasonable to award the sums indicated in the appended table and dismisses the remainder of the applicants’ claims for just satisfaction.

19.  The Court further considers it appropriate that the default interest rate 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,

1.      Decides to join the applications;

2.      Declares the complaints concerning the searches of the applicants’ professional premises and the other complaints under well-established case-law of the Court, as set out in the appended table, admissible, and the remainder of applications nos. 28539/10 and 40035/18 inadmissible;

3.      Holds that these complaints disclose a breach of Article 8 § 1 of the Convention concerning the searches of the applicants’ professional premises;

4.      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 appended table);

5.      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;.

6.      Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 13 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

      Viktoriya Maradudina                                                Darian Pavli
    Acting Deputy Registrar                                                President

APPENDIX

List of applications raising complaints under Article 8 § 1 of the Convention

(unlawful search)