Home search warrant without sufficient evidence of a crime. Violation of the right to respect for privacy and residence

JUDGMENT

Doroż v. Poland 29.10.2020 (App. no.  71205/11)

see here  

SUMMARY

Right to respect for privacy and residence and conditions for justified “intervention”.

A search of the applicant’s residence was carried out following a warrant issued by the competent prosecutor, in order to determine whether he had in his possession leaflets which had been distributed in the city with offensive content to the mayor.

The applicant brought an action on the ground that the issuance of the house search warrant had not duly stated the reasons for the search and that there was no justification for the violation of his right to respect for his privacy and residence. The domestic courts dismissed the claim for damages, recognizing the investigation as lawful and necessary to prevent crimes.

According to the Strasbourg case law, in order for a home investigation to be considered lawful, the gravity of the crime under investigation must be taken into account and safeguards taken in order to limit the impact of the measure to reasonable limits.

In the present case, the ECtHR found that the warrant had been issued with insufficient evidence, mainly on the ground that possession of booklets was not an illegal act. Strasbourg considered that the search of the applicant ‘s residence was not justified by “relevant” and “sufficient” reasons and that the principle of proportionality had not been complied with, so there had been a breach of privacy as protected by Article 8.

It awarded the applicant EUR 10,000 for non-pecuniary damage.

PROVISION

Article 8

PRINCIPAL FACTS

The applicant, Artur Doroż, is a Polish national who was born in 1983 and lives in Dąbrowa
Tarnowska (Poland).

The case concerned a search of the applicant’s home ordered in connection with a police
investigation into illegal distributing of leaflets.

In April 2011 leaflets containing information about the salary of the mayor of Dąbrowa Tarnowska
and his photograph were distributed anonymously in public places in three nearby towns. During the
investigation of the incident, the police were informed that the applicant might be in possession of
more leaflets. The local prosecutor authorised a search of the applicant’s home to secure any
possible pieces of evidence. The police conducted the search and no leaflets or other evidence were
found.

The applicant lodged a civil action against the search order, alleging that the decision had not been
sufficiently reasoned and that there had been no justification for a breach of his right to respect of
his private life and home. The courts dismissed his action in June 2011, ruling that the search had
been lawful and justified, as it was the only way to verify that the applicant had had in his possession
the leaflets which had been distributed.

Relying in particular on Article 8 (right to respect for private and family life, home and
correspondence) of the Convention, Mr Doroż complained that the search of his home had neither
been proportionate nor necessary, given that the domestic law had not prohibited the possession of
leaflets, and the information contained in them had been in the public domain.

THE DECISION OF THE COURT…

It was not disputed that the search conducted in the applicant’s house amounted to an “interference” with his right to respect for his home, as guaranteed by Article 8 § 1 of the Convention.

The Court must accordingly ascertain whether, in the circumstances of the case, the entry into the applicant’s home struck a fair balance between the relevant interests, namely his right to respect for his home, on the one hand, and the prevention of disorder and crime and protecting the rights and freedoms of others, on the other

As regards searches, the Court has consistently held that the Contracting States may consider it necessary to resort to such measures in order to obtain physical evidence of certain offences.  The criteria the Court has taken into consideration in determining this latter issue are, inter alia: the severity of the offence in connection with which the search and seizure were effected; the manner and circumstances in which the order was issued, in particular whether any further evidence was available at that time; the content and scope of the order, having particular regard to the nature of the premises searched and the safeguards implemented in order to confine the impact of the measure to reasonable bounds; and the extent of possible repercussions on the reputation of the person affected by the search .

Turning to the present case, the Court observes that the applicant himself was not charged with, or suspected of, any offence. The search of his house was carried out in connection with the police’s investigation of the petty offence of unlawful distribution of leaflets. In the present case, the police obtained a search order from a prosecutor, indicating that they had received information that the applicant might be in possession of the leaflets in question .

Considering the content and scope of the search order, the Court notes that the prosecutor’s order of 6 April 2011 was drafted in broad terms referring to securing evidence, that is, the “leaflets with information about the salary of the mayor and his photograph”. In particular, it did not give any consideration to why the applicant could have been considered to be in possession of the material in question and why there had been a need to search for it since the leaflets themselves had not been illegal. There was no reference to any material evidence except for information allegedly received by the police.

The Court further finds that the absence of a prior judicial authorisation was not sufficiently counterbalanced by the availability of an ex post facto judicial review. The judicial review in the case at hand was limited to concluding that the order had been given in accordance with the law and had been justified. The domestic court did not weigh the competing interests at stake in the instant case. Nor did the domestic authorities take into consideration the fact that the leaflets in question contained public information concerning an elected official. Moreover, it was not argued by the domestic authorities or the Government that the possession of those leaflets could amount to any offence proscribed by law.

The Court is therefore not convinced that the search of the applicant’s home was justified by “relevant” and “sufficient” reasons.

The Court reiterates that the States, when taking measures to prevent crime and to protect the rights of others, may well consider it necessary, for the purposes of special and general prevention, to resort to measures such as searches and seizures in order to obtain evidence of certain offences .Such measures may also be deemed necessary in respect of petty offences. However, having regard to the severity of the interference with the right to respect for private life of persons affected by such measures, it must be clearly established that the proportionality principle has been adhered to .

Having regard to the circumstances of this case, in particular the fact that the search of the flat inhabited by the applicant had been ordered in connection with a minor offence purportedly committed by a third person, the Court concludes that it was carried out without relevant and sufficient grounds and cannot be regarded as proportionate to the legitimate aims pursued. It was not therefore “necessary in a democratic society”.

There has accordingly been a violation of Article 8 of the Convention.

 


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