Unjustified search of a home and seizure of personal belongings. Violation of respect for home
JUDGMENT
Svetova and others v. Russia 24.01.2023 (app. no. 54714/17)
SUMMARY
The five applicants complained about the unjustified search in their home. At 11 a.m. on 28 February 2017 the police arrived at the applicants’ apartment in Moscow to execute the warrant. According to the applicants, the officers did not introduce themselves and did not show their badges. They refused to let the applicants read the search warrant or to postpone the search until the arrival of their lawyers.
During the search, the investigator seized personal items belonging to the applicants. He also downloaded information from Ms Svetova’s computer which contained interviews conducted for the purpose of her journalistic work and other journalistic materials.
The applicants complained that the search of their flat and the seizure of their personal belongings had amounted to a violation of Article 8 of the Convention, taken alone or together with Article 13 on account of the absence of effective remedies available to them. Ms Svetova also complained that the search and seizure of items relating to her journalistic work amounted to a breach of Article 10 of the Convention.
The domestic courts refused to consider the applicants’ complaint against the conduct of the police during the search and about the interference with the applicants’ professional journalistic activity by that search and seizure of electronic data storage devices.
The Court found a violation of Article 8 of the Convention, taken alone and in conjunction with Article 13, in respect of all the applicants, and a violation of Article 10 of the Convention in respect of Ms Svetova. It held that Russia was to pay the applicants the following amounts in respect of non-pecuniary damage: EUR 10,000 (ten thousand euros) to Ms Zoya Svetova, EUR 7,000 (seven thousand euros) to Ms Anna Dzyadko as the heir of Mr Viktor Dzyadko, and EUR 4,000 (four thousand euros) each to Mr Filipp Dzyadko, Mr Timofey Dzyadko and Mr Tikhon Dzyadko.
PROVISIONS
Article 8,
Article 10,
Article 13
PRINCIPAL FACTS
The first applicant, Ms Zoya Svetova, is a human rights activist and journalist. Between 2008 and 2016 she was a member of the Moscow public monitoring commission, an advisory body made up of members of civil society who may visit detention facilities, collect complaints from detainees and give recommendations to public authorities. The second applicant, Mr Viktor Dzyadko, was an artist and Soviet dissident. The third applicant, Mr Filipp Dzyadko, is the editor-in-chief of educational website Arzamas. The fourth applicant, Mr Timofey Dzyadko, is the editor of the fuel and energy industry section in a business newspaper. The fifth applicant, Mr Tikhon Dzyadko, is the editor-in-chief of the TV Rain channel.
As a journalist, the first applicant collaborated with the Open Russia Foundation, a non-profit organisation founded by Mr Mikhail Khodorkovskiy. Mr Khodorkovskiy, formerly one of Russia’s wealthiest businessmen, has been involved in politics since the early 2000s. He had allocated significant funds to support the opposition parties and openly voiced criticism of what he considered Russia’s anti-democratic trends. He had founded and funded the Open Russia Foundation to promote democratic values in Russian society (see Khodorkovskiy v. Russia, no. 5829/04, §§ 7-9, 31 May 2011, and Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, §§ 24‑27, 25 July 2013).
On 20 June 2003 the Prosecutor General of the Russian Federation opened a criminal investigation into the financial dealings of Mr Khodorkovskiy and his business associates (criminal case no. 18/41‑03). In 2005 Mr Khodorkovskiy and Mr Lebedev were found guilty on embezzlement and tax evasion charges and given lengthy custodial sentences. The applicants were not involved in those proceedings in any capacity.
On 18 January 2017 the Basmannyy District Court in Moscow issued, in ex parte proceedings, a warrant to search the flat where the applicants lived.
At 11 a.m. on 28 February 2017 the police arrived at the applicants’ apartment in Moscow to execute the warrant. According to the applicants, the officers did not introduce themselves and did not show their badges. They refused to let the applicants read the search warrant or to postpone the search until the arrival of their lawyers. After the lawyers arrived at about 4 p.m., the officers gave them access to the District Court’s warrant of 18 January 2017 which referred to criminal case no. 18/41-03 opened in 2003. One of the lawyers started making a handwritten copy of the warrant but was soon interrupted. The applicants provided the Court only with the text of the introductory part of the warrant which the lawyer had managed to copy. It appears from the search record drawn up on that date that the purpose of the search was to discover and seize any documents containing information about the funds received by the applicants from the owners of several offshore companies, including Mr Khodorkovskiy.
During the search, the investigator seized personal items belonging to the applicants, including an e-book, a mobile phone, bank cards, flash drives, micro-audio cassettes, CDs, and laptops. He also downloaded information from Ms Svetova’s computer which contained interviews conducted for the purpose of her journalistic work and other journalistic materials.
By decision of 9 March 2017, as upheld on appeal on 3 May 2017 and on cassation on 9 August 2017, the Basmannyy District Court refused to consider the applicants’ complaint against the conduct of the police during the search and about the interference with the applicants’ professional journalistic activity by that search and seizure of electronic data storage devices. It held that the legal basis and justification for the search could only be reviewed by a trial court at the pre-trial stage of the criminal proceedings.
On 28 February and 26 June 2017 Ms Svetova asked the investigator to return the items seized during the search. On 3 March and 2 July 2017 the investigator issued decisions attaching the seized items as physical evidence. It appears that the seized items have not been returned to the applicants to this date.
THE DECISION OF THE COURT…
The applicants submitted that the search of their flat and an indiscriminate seizure of their personal belongings had not pursued a legitimate aim and had been neither lawful nor necessary in a democratic society. They had not had any procedural status in the criminal proceedings in which the search of their flat had been ordered. Ms Svetova submitted that, for the same reasons, the search and seizure interfered with her right to protection of her journalistic sources under Article 10 of the Convention. Lastly, the applicants alleged that no effective remedies had been available to them.
The Court considered, first, that the search of the applicants’ flat and the seizure of the applicants’ personal belongings constituted an interference with the exercise of the applicants’ right to respect for their private life and home within the meaning of Article 8 § 1 of the Convention (see Avaz Zeynalov v. Azerbaijan, nos. 37816/12 and 25260/14, § 78, 22 April 2021, with further references). Such interference will constitute a breach of Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in Article 8 § 2 and is “necessary in a democratic society” to achieve those aims.
The Court noted that the applicants had not been given a copy of the search warrant but had only been allowed to read it briefly. It further noted that the Russian courts declined to carry out a judicial review of the reasons underlying the issuance of the warrant and that the respondent Government chose not to participate in the proceedings and not to submit any documents or arguments in their defence. Accordingly, the Court would need to examine the application on the basis of the applicants’ submissions which would be presumed to be accurate where supported by evidence and as long as other evidence available in the case file would not lead to a different conclusion.
The Court found no indication that the applicants were charged with or suspected of any criminal offence or unlawful activities. Their home was searched in connection with a criminal case against third parties in which the applicants did not have any procedural status. In the absence of a copy of the search warrant and the domestic courts’ findings, the Court was unable to satisfy itself that the warrant was based on a reasonable suspicion that any items indicative of any criminal activities might be found in the applicants’ flat. The reasons indicated in the search record which appear to reflect the language of the search warrant could not be accepted as “relevant” or “sufficient” as they did not indicate any possible connection between the applicants and the criminal case against the third parties.
The Court further noted that the search warrant was issued fourteen years after the opening of a criminal case against the third parties and was executed forty days after it had been issued. Such a wide time frame, in the absence of any explanation, makes doubtful its usefulness for the investigation.
The Court observed that in previous Russian cases it was the vagueness and excessively broad terms of search warrants that were considered to constitute the decisive element for the finding of a violation of Article 8, as they gave the authority executing them unrestricted discretion in determining the scope of the search (see Aleksanyan v. Russia, no. 46468/06, § 216, 22 December 2008; Kolesnichenko v. Russia, no. 19856/04, § 33, 9 April 2009; and Misan, § 60).
In the instant case, the search record, which appears to reflect the language of the search warrant, indicated that the purpose of the search was to discover and seize any documents containing information about funds received from the owners of several offshore companies, including Mr Khodorkovskiy. In light of the extremely wide time frame of the criminal proceedings and the fact that the applicants were not suspected of any criminal behaviour, the Court considered that these are general and broad terms which gave the police unrestricted discretion in determining which items and documents were to be seized. On the basis of that overly broad scope, the investigator removed multiple personal items belonging to the applicants. Such indiscriminate seizure cannot be considered “necessary in a democratic society”.
The foregoing considerations were sufficient to enable the Court to conclude that the interference did not comply with the requirements of Article 8 § 2 of the Convention.
Next, the Court noted that, even if the purpose of the searches and seizures was not to uncover Ms Svetova’s journalistic sources, the vagueness of the formulations and the unrestricted discretion in the determination of the scope of the search were too broad to rule out that possibility. They, therefore, constituted an interference with Ms Svetova’s journalistic freedom of expression and were disproportionate and not “necessary in a democratic society” within the meaning of Article 10 § 2.
Lastly, the Court noted that the Russian courts declined to consider the applicants’ complaint about the legality and the manner in which the search and seizure measures had been executed. They held that those matters would be examined at some future point in time during a criminal trial. This, however, had the practical effect of denying an effective review of the applicants’ grievances in so far as they were not the individuals being investigated and had no status in any criminal proceedings. It follows that they were denied an effective remedy required by Article 13 of the Convention.
Accordingly, the Court found a violation of Article 8 of the Convention, taken alone and in conjunction with Article 13, in respect of all the applicants, and a violation of Article 10 of the Convention in respect of Ms Svetova.
Just satisfaction (Article 41)
The Court held that Russia was to pay the applicants the following amounts in respect of non-pecuniary damage: EUR 10,000 (ten thousand euros) to Ms Zoya Svetova, EUR 7,000 (seven thousand euros) to Ms Anna Dzyadko as the heir of Mr Viktor Dzyadko, and EUR 4,000 (four thousand euros) each to Mr Filipp Dzyadko, Mr Timofey Dzyadko and Mr Tikhon Dzyadko.
