Telephone tapping, video footage and secret surveillance without legal approval violate privacy.

JUDGMENT 

Judgment of 7.11.2017 Akhlyustin v. Russia (no. 21200/05), Dudchenko v. Russia (no. 37717/05), Konstantin Moskalev v. Russia (no. 59589/10),  Moskalev v. Russia  (no. 44045/05)

SUMMARY 

All five cases concern secret supervision measures in criminal proceedings without prior judicial approval. In particular, the applicants were monitored through covert video recording at an office, telephone tapping, audio tracking. Also in one there was a follow-up of telephone conversations with his lawyer. The ECtHR examined case by case and resulted in violations of privacy, correspondence and inhuman and degrading treatment of their detention conditions.

PROVISIONS

Article  3

Article 5 § 3

Article 6 §§ 1 και 3 (c)

Article 8

Article  13

PRINCIPAL FACTS 

All five cases concerned secret surveillance measures in the context of criminal proceedings. In four
out of the five cases, surveillance measures were ordered under the Operational Search Activities
Act; in the other case, Dudchenko v. Russia, the measures were ordered under the Code of Criminal
Procedure. In all five cases the applicants alleged in particular a violation of Article 8 (right to respect
for private and family life, the home and the correspondence), essentially complaining about various
surveillance measures against them, including telephone tapping, covert filming, video and audio
surveillance.

The applicant in the first case, Vladimir Akhlyustin, is a Russian national who was born in 1979 and
lives in Ivanovo (Russia). A member of the Ivanovo Region electoral commission, he was convicted in
September 2004 of abuse of power and given a two-year suspended prison sentence. His conviction
was based, along with witness statements and expert reports, on evidence obtained via the so-called
police “surveillance” measures which did not require a judicial authorisation, namely covert filming
of his office. His conviction was upheld on appeal in November 2004. The courts notably found that
the video recordings were admissible as evidence because they had been obtained in accordance
with the procedure prescribed by law.

In his Article 8 complaint, Mr Akhlyustin notably alleged that the covert filming of his office had
interfered with the privacy of his home and correspondence.

The applicant in the second case, Vladimir Dudchenko, is a Russian national who was born in 1975
and lives in Murmansk (Russia). Suspected of being the leader of a criminal armed gang, he was
arrested in December 2003 and spent the next two years and four months in pre-trial detention. The
domestic courts based their decisions to extend his detention during this period essentially on the
gravity of the charges against him. After the case was submitted for trial, the courts issued collective
detention orders against him and two other co-accused. Mr Dudchenko was found guilty as charged
in May 2006 and sentenced to 13 years’ imprisonment. The courts relied, among other evidence, on
transcripts of conversations with one of his alleged accomplices and his counsel which had been
obtained via telephone tapping. He appealed against his conviction, complaining about: the use of
the transcripts as evidence in the proceedings against him; the removal of his counsel from the case;
and the authorities’ refusal to allow his brother to act as his legal representative. His conviction was
however upheld in December 2006, the courts finding that the transcripts had been correctly
admitted as evidence and that any breach of his defence rights had already been rejected as
unsubstantiated.

In his Article 8 complaint, Mr Dudchenko specifically alleged that his telephone conversations with
his counsel should have been protected by legal professional privilege. He also made a number of
other complaints, alleging: under Article 3 (prohibition of inhuman or degrading treatment) that the
inadequate conditions of his detention in various remand prisons and when being transported
between detention facilities had inadequate; under Article 5 § 3 (right to liberty and security) that
his pre-trial detention had been too long and unjustified; and under Article 6 §§ 1 and 3 (c) (right to
a fair trial within a reasonable time and right to legal assistance of own choosing) that the criminal
proceedings against him had lasted too long and that he had been unable to defend himself through
legal assistance of his own choosing.

The applicant in the third case, Konstantin Moskalev, is a Russian national who was born in 1982 and
lives in the Krasnoyarsk region (Russia). A police officer, he was convicted in December 2009 of
attempted fraud and sentenced to just over two years’ imprisonment. He was also stripped of his
rank in the police. The court based its judgment on, among other evidence such as witness
statements and expert opinions, Mr Moskalev’s telephone conversations intercepted during a
surveillance operation. Throughout the criminal proceedings, Mr Moskalev complained
unsuccessfully about the interception of his telephone communications without judicial
authorisation, as permitted under the relevant domestic law – the Operational Search Activities Act
– in urgent cases. He also argued on appeal that the evidence thus obtained had been unlawful and
should not have been used to convict him. His conviction was however upheld on appeal in April
2010, on the ground that the decisions declaring the evidence admissible had been correct.
In his Article 8 complaint, the applicant notably alleged that the domestic courts had not made any
assessment of whether the urgent procedure in his case had been justified. The Court also examined
under Article 13 (right to an effective remedy) in conjunction with Article 8 whether it had been
possible for him to effectively challenge the interception of his telephone communications.

The applicant in the fourth case, Yuriy Moskalev, is a Russian national who was born in 1960 and
lives in Omsk (Russia). A prison official, he was found guilty in February 2005 of disclosing State
secrets by informing a convict’s relative that the convict was under covert surveillance. He was given
a three-year suspended prison sentence. His conviction was based on evidence obtained via
telephone tapping, monitoring of his postal and digital communications as well audio surveillance of
his office ordered in the context of a wider investigation into allegations of prison officials operating
a bribery scheme. His complaint that the recording of his telephone conversation with a convict’s
relative had been obtained unlawfully and should not be admitted in evidence was rejected. The
first-instance court found in particular that the interception of his telephone conversations had been  authorised by a court on the grounds that he was suspected of a serious criminal offence, bribe-taking. His conviction was upheld on appeal in June 2005, the Supreme Court noting that all evidence had been collected in accordance with the procedure prescribed by law. Charges of
bribe-taking or abuse of power were never brought against him.

In his Article 8 complaint, the applicant alleged that the covert surveillance measures taken against
him had not been necessary. In particular he complained that the judge who had authorised the
measures had not verified whether there had been a reasonable suspicion of his involvement in
bribe-taking; and, moreover, alleged that the offence for which he had ultimately been convicted
had in no way been connected to the offences mentioned in the authorisation for surveillance.
The applicants in the fifth case are Maksim Zubkov, Andrey Ippolitov, and Andrey Gorbunov; they
are Russian nationals who were born in 1979, 1975, and 1964 respectively and live in Novgorod,
Tver, and Vladimir (all in Russia). All three applicants were arrested and charged with a number of
criminal offences: Mr Zubkov with drug trafficking in 2002; Mr Ippolitov with aiding and abetting
bribery in 2004; and Mr Gorbunov with fraud in 2006. During the ensuing criminal proceedings
against them, they discovered that they had been the subject of secret surveillance as the
prosecution were using audio and video recordings as evidence to substantiate the cases against
them. They argued that the recordings should not be admitted as evidence as they had been
obtained without prior judicial authorisation. They also requested access to the decisions authorising
such covert surveillance. Their requests were however refused on grounds of confidentiality. Both
Mr Zubkov and Mr Ippolitov were convicted as charged in 2004/5 and given prison sentences. The
judgments against them were subsequently upheld on appeal. Mr Gorbunov’s detention has been
extended on a number of occasions since 2006.

In their Article 8 complaint, they complained in particular about the authorities refusing them access
to the judicial decisions authorising the secret surveillance against them; Mr Zubkov even doubted
that such judicial authorisation had existed in his case. Mr Gorbunov also alleged under Article 5 § 4
(right to have lawfulness of detention decided speedily by a court) that it had taken the Russian
courts too long to examine an appeal he had lodged against an order extending his detention in
November 2006.

– case of Akhlyustin:
Violation of Article 8
Just satisfaction: EUR 7,500 (non-pecuniary damage) and EUR 2,000 (costs and expenses)

– case of Dudchenko:
Violation of Article 3 (treatment) – on account of the conditions of Mr Dudchenko’s detention
pending trial
Violation of Article 3 (inhuman and degrading treatment) – on account of the conditions of
transport between detention facilities
Violation of Article 5 § 3
No violation of Article 6 §§ 1 and 3 (c)
Violation of Article 8 – on account of the interception of telephone conversations with an
accomplice
Violation of Article 8 – on account of the interception of telephone conversations with counsel
Just satisfaction: EUR 14,000 (non-pecuniary damage)

– case of Konstantin Moskalev:
Violation of Article 8
Violation of Article 13 in conjunction with Article 8
Just satisfaction: EUR 7,500 (non-pecuniary damage) and EUR 1,000 (costs and expenses)
– case of Moskalev:
Violation of Article 8
Just satisfaction: EUR 7,500 (non-pecuniary damage) and EUR 400 (costs and expenses)
– case of Zubkov and Others:
Violation of Article 8 – in respect of Mr Zubkov, Mr Ippolitov and Mr Gorbunov
Violation of Article 5 § 4 – in respect of Mr Gorbunov
Just satisfaction: EUR 7,500 each to Mr Zubkov and Mr Ippolitov, and EUR 4,300 to Mr Gorbunov for
non-pecuniary damage; and EUR 2,000 to Mr Gorbunov for costs and expenses(echrcaselaw.com editing).