House warrant should not be general but should contain sufficient reasoning
Modestou v. Greece 16-3-2017 (no. 51693/13)
Home search. The applicant is a Cypriot businessman who lives in Athens. A prosecutor’s order under a preliminary investigation was conducted at home, without him being present, during which computers and documents were seized. The prosecutor then instituted proceedings against a number of individuals, including the applicant, for involvement in a criminal organisation. The Court observed that the search warrant had been drafted in general terms. The prosecutor had not included any information about the investigation and the items that had to be seized, which meant that it provided broad power to the police officer. The Court noted, however, that the investigation was accompanied by certain procedural safeguards. The ECtHR considered that the national authorities had not fulfilled their obligation to provide relevant and sufficient reasons for the issuing of the investigation warrant.
The applicant, Mr Mamas Modestou, is a Cypriot national who was born in 1976 and lives in Athens. He is a businessman and also chairman of a public limited company.
In September 2010 the public prosecutor at the Athens Court of Appeal ordered the police to carry out searches at fifteen residential and business premises, including the applicant’s home address, in the context of a preliminary investigation. A police officer, accompanied by a deputy prosecutor, had the front door opened by a locksmith and searched Mr Modestou’s home, seizing a number of items – two computers and hundreds of documents – in the presence of just one witness, a neighbour.
In May 2012 the prosecutor instituted proceedings against a number of individuals, including the applicant, for involvement in a criminal organisation. On 8 November 2012 Mr Modestou applied to the Athens Court of Appeal to have the search declared null and void, the seizure order lifted and the seized items returned. The Indictment Division dismissed the application. It observed that the preliminary police investigation and the subsequent pre-trial investigation had jointly sought to “establish the truth”, the latter in respect of an “accused” and the former in respect of a “suspect” who, it maintained, enjoyed all the rights granted to the accused. The Indictment Division observed that the preliminary police investigation had been judicial and not administrative in nature and had formed a stage of the criminal proceedings. Accordingly, in deciding whether to bring a prosecution, the prosecuting authorities had to use all the means at their disposal to gather evidence. The Indictment Division found that the Article of the Code of Criminal Procedure providing for the right of the occupant of the premises being searched to be present did not impose an obligation and that, in the occupant’s absence, the presence of a neighbour was sufficient. With regard to the authorities’ refusal to return the seized property, the Indictment Division stated that the items in question, which were particularly decisive and crucial for the investigation of the case, should remain in the file. Mr Modestou was refused leave to appeal on points of law against that decision.
THE DECISION OF THE COURT
The Court had consistently held that the Contracting States might consider it necessary to resort to search and seizure operations in order to obtain physical evidence of certain offences. It was then the Court’s task to review whether the reasons adduced to justify such measures were relevant and sufficient and whether the proportionality principle had been observed. In so doing, it had to ensure that the relevant legislation and practice afforded individuals adequate and effective safeguards against abuses.
The Court noted firstly that the search in question had taken place during the preliminary police investigation, which preceded the pre-trial investigation and was thus a particularly early stage of the criminal proceedings. It considered that a search carried out at that stage had to be accompanied by adequate and sufficient safeguards ensuring that it was not used as a means of providing the police with compromising evidence relating to individuals who had yet to be identified as suspects in relation to an offence.
The Court observed that the search warrant had been drawn up in general terms. The public prosecutor had not included any information about the investigation in question and the items to be seized, thus conferring broad powers on the investigating officer. Where domestic legislation did not provide for prior judicial scrutiny of the lawfulness and necessity of an investigative measure, the Court emphasised that other safeguards had to be in place, particularly in terms of the execution of the search warrant, so as to offset any inadequacies in the issuing and content of the warrant. In the present case the Court noted that Greek legislation did not provide for any such prior scrutiny.
The Court observed, however, that the search had been accompanied by certain procedural safeguards. Firstly, it had been ordered by the public prosecutor at the Court of Appeal, who had issued a search warrant and had delegated the task to the police headquarters. Secondly, the search had been carried out by a police officer accompanied by a deputy prosecutor.3
The Court observed that Mr Modestou had not been present at any time during the search, which had lasted for 12 and a half hours, and that it was not clear from the file whether the investigating officers had attempted to inform him of the operation even though the Code of Criminal Procedure required the person carrying out the search to invite the occupant of the premises to attend.
The Court noted that in addition to the lack of prior judicial scrutiny, the imprecise nature of the warrant and the fact that the applicant had not been physically present during the search, there had been no immediate retrospective judicial review. The search had led to the seizure of two computers and hundreds of documents, and it had never been established whether all the documents concerned were directly linked to the offence under investigation. It could not be easily ascertained from the wording of the warrant whether the applicant had been given precise information about the scope of the search, such as to be able to complain of any abuses in that context. The Court of Appeal had ruled on Mr Modestou’s appeal more than two years after the events and had devoted most of its decision to determining whether a search and seizure operation could be carried out during a preliminary police investigation. The Court considered that the domestic authorities had fallen short of their obligation to provide “relevant and sufficient” reasons to justify issuing the search warrant.
The Court concluded that the measures complained of had not been reasonably proportionate to the legitimate aims pursued, bearing in mind the interest of a democratic society in ensuring respect for the home, and that there had therefore been a violation of Article 8 of the Convention.
Just satisfaction (Article 41)
The Court held that Greece was to pay the applicant 2,000 euros (EUR) in respect of non-pecuniary damage and EUR 2,000 in respect of costs and expenses.