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European Court of Human Rights


You are here: BAILII >> Databases >> European Court of Human Rights >> CHAKHMAKHCHYAN AND OGANESYAN v. RUSSIA - 26129/09 (Judgment : Article 6 - Right to a fair trial : Third Section Committee) [2022] ECHR 753 (04 October 2022)
URL: http://www.bailii.org/eu/cases/ECHR/2022/753.html
Cite as: ECLI:CE:ECHR:2022:1004JUD002612909, CE:ECHR:2022:1004JUD002612909, [2022] ECHR 753

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THIRD SECTION

CASE OF CHAKHMAKHCHYAN AND OGANESYAN v. RUSSIA

(Application no. 26129/09)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

4 October 2022


 

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


In the case of Chakhmakhchyan and Oganesyan v. Russia,


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

          Georgios A. Serghides, President,

          Anja Seibert-Fohr,

          Peeter Roosma, judges,

and Olga Chernishova, Deputy Section Registrar,


Having regard to:


the application (no. 26129/09) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Mr Levon Khorenovich Chakhmakhchyan (“the first applicant”) and Mr Armen Artavazdovich Oganesyan (“the second applicant”) (“the applicants”), on 18 May 2009;


the decision to give notice to the Russian Government (“the Government”) of the complaints concerning the alleged unfairness of the proceedings in the applicants’ case which were held in camera and the interception of the first applicant’s communications, and to declare the remainder of the application inadmissible;


the parties’ observations;


Having deliberated in private on 13 September 2022,


Delivers the following judgment, which was adopted on that date:

INTRODUCTION


1.  The application concerns the criminal conviction of the applicants - a former member of the Federation Council (one of the chambers of the Russian Federal Assembly) and his son-in-law, a chief inspector of the Russian Chamber of Auditors - for fraud against a major airline company. The applicants alleged that they had been deprived of their right to a fair trial because the proceedings had been held in camera. The first applicant also raised a complaint that the interception of his communications and the consequent violation of his parliamentary immunity had been unlawful.

THE FACTS


2.  The applicants were born in 1952 and 1975 and were serving their sentences in Ukhta and Solikamsk respectively. They had been granted legal aid and were represented before the Court by Ms K.A. Moskalenko and Ms A.E. Stavitskaya, lawyers practising in Strasbourg.


3.  The Russian Government (“the Government”) were initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov.


4.  The facts of the case, as submitted by the parties, may be summarised as follows.


5.  At the time of the events, the first applicant was a member of the Federation Council of the Russian Federation (senator of the Russian Federation). The second applicant, his son-in-law, was a chief inspector of the Russian Chamber of Auditors.


6.  According to the Government’s account of the events, the first applicant learned from the second applicant that one of the largest national airline companies, Transaero, had received an illegal tax exemption which had become known to the authorities. The applicants approached the chairman of the company’s board of directors, Mr P. and convinced him that they could help the company to avoid its financial problems and possible tax persecution. They persuaded him to transfer 1.5 million United States dollars (USD) to them as a reward. On 2 June 2006, while receiving the first instalment of USD 300,000, the applicants were arrested. Subsequently, the first applicant was released after his identity and status had been confirmed. Both applicants maintained their innocence.


7.  On various dates from 17 May 2006 onwards (including on 29 and 30 May 2006), the interception of Mr P.’s audio and video communications (“the operational experiment”) with persons involved in the fraud was authorised by the Federal Security Service. On three occasions the first applicant’s communications were also recorded. The applicants learned about the interception during the criminal proceedings against them.


8.  On 23 June 2006 the Federation Council terminated the first applicant’s status as a member of it. On 8 December 2006 the Supreme Court of the Russian Federation acknowledged that his actions could possibly have had the elements of corpus delicti. That decision became final on 6 February 2007. On 7 February 2007 the prosecution initiated formal criminal proceedings against the first applicant.


9.  On 23 October 2007, following a request by the prosecution, the trial court decided to hold the proceedings in camera since one of the volumes of the case file contained classified information marked as “top secret”. After studying the material during the court proceedings, the defence submitted an unsuccessful request for the hearing to be held in public from that point onwards. For reasons of State security, part of the court proceedings was held on the premises of SIZO no. 2, Moscow, where the first applicant was being detained.


10.  The material before the Court does not indicate which types of documents were classified or which State interests were at stake.


11.  On 17 July 2008 the Moscow City Court convicted the applicants for fraud. On 20 November 2008 the Supreme Court of the Russian Federation upheld the conviction on appeal.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

I.        secret surveillance and hearings in camera


12.  For a summary of the relevant provisions concerning secret surveillance measures in criminal proceedings in Russia, see Akhlyustin v. Russia (no. 21200/05, §§ 14-18, 7 November 2017).


13.  Pursuant to Article 241 § 2 of the 2001 Code of Criminal Procedure, holding a hearing in camera was possible on the basis of a court decision if:


- the proceedings could lead to the disclosure of a State secret or other classified information;


- the case concerned offences committed by minors;


- proceedings concerning sex crimes or other offences could lead to the disclosure of sensitive information about the parties’ private lives or humiliating information; or


- a hearing in camera was essential for the safety of the parties or their families.


A court decision to hold a hearing in camera had to set out the exact factual circumstances on which that decision had been based. Such a decision could concern the entire proceedings or a part thereof.

II.     THE ISSUE OF JUSTICIABILITY


14.  Section 20 of the 1996 Federal Constitutional Law on the Judicial System of the Russian Federation provides as follows:

“The Supreme Court of a republic, a regional [krai/oblast] court, [or] a court of a city of federal significance ... shall, within the limits of its jurisdiction, hear cases as a court of first instance and as a court of appeal, on the basis of new or newly discovered facts, and exercise other powers as specified in federal constitutional law.”


15.  Under the 2001 Code of Criminal Procedure, a regional high court has jurisdiction to consider a case as a first-instance court when the case concerns, inter alia, classified information (Article 31 § 3).


16.  At the material time, the Supreme Court of the Russian Federation had jurisdiction to consider cases as a second-instance court in appellate or cassation proceedings. For a summary of the relevant legal provisions, see Berdzenishvili v. Russia ((dec.), no. 31697/03, ECHR 2004‑II (extracts)).

III.   THE STATE SECRETS ACT


17.  The rules governing the information to be classified as official secrets are set out in the 1993 State Secrets Act (Закон о государственной тайне – Law no. 5485-1). Such information may include data on operational search activities, including the forces and means deployed and the sources, methods, plans and results of such activities (section 5(4)).


18.  The Act states that the justification for categorising information as a State secret and giving it classified status is established by means of an expert assessment of both the reasonableness of classifying particular information and the potential economic and other consequences of that action in view of the balance between vitally important interests of the State, society and citizens (section 6(4)).


19.  Article 5 of Presidential Decree no. 1203 of 30 November 1995 contains a detailed list of the information which must be considered a State secret.

IV.  Status of senators of the Russian Federation


20.  The immunity of a senator of the Russian Federation (known as a “member of the Federation Council” at the relevant time) is guaranteed by the 1993 Constitution of the Russian Federation. Article 98 of the Constitution provided as follows:

“1. Members of the Federation Council of the Russian Federation and members of the State Duma shall enjoy immunity during the entire term of their office. They may not be detained, arrested or searched, except in the event of detention at a crime scene; they may not be subjected to personal searches, except in instances where this is provided for by federal law in order to ensure the safety of others.

2. The issue of the removal of immunity shall be decided by an appropriate chamber of the Federal Assembly on a proposal by the Prosecutor General of the Russian Federation.”


21.  The relevant parts of the 1994 Federal Constitutional Law on the status of senators of the Russian Federation and members of the State Duma of the Federal Assembly of the Russian Federation (as amended on 22 December 2020, changing at the relevant part the reference to senators instead of the “member of the Federation Council”) provide as follows:

Section 19. Immunity of senators of the Russian Federation
and members of the State Duma

“...

3. The immunity of a senator of the Russian Federation ... shall extend to [his or her] homes and offices, personal and official vehicles, means of communication, documents, luggage and correspondence.

4. ... If criminal proceedings have been instituted or administrative offence proceedings involving administrative liability imposed by a court of law have been initiated in respect of a senator of the Russian Federation or a member of the State Duma in connection with the exercise of their powers, the Prosecutor General of the Russian Federation shall, within one week of receiving a report from a body of inquiry or an investigator, submit a proposal to the appropriate chamber of the Federal Assembly of the Russian Federation to have the senator or member deprived of immunity.

5. Once the inquiry, preliminary investigation or proceedings in respect of an administrative offence involving administrative liability imposed by a court of law have been completed, the case may not be transferred to a court without the consent of the relevant chamber of the Federal Assembly of the Russian Federation.”


22.  On several occasions, the Constitutional Court of the Russian Federation reviewed the constitutionality of the legislative provisions governing the status of senators of the Russian Federation. In its judgment no. 5-P of 20 February 1996, the Constitutional Court stated that parliamentary immunity “is not a personal privilege, but is of a public-law nature, designed to serve the public interest by providing increased legal protection for individual parliamentarians by virtue of the public functions they perform” (paragraph 1). The Constitutional Court stressed that “without the approval of the respective chamber, court proceedings in respect of the parliamentarian cannot be initiated” (paragraph 4).

V.     the Constitutional Court’s decisions of 8 February 2007 and 5 February 2009


23.  On 8 February 2007 the Constitutional Court delivered its decision no. 1-O where the first applicant had challenged the constitutionality of the 1995 Operational-Search Activities Act, which provides for limitations on the right of citizens to access material relating to operational-search activities. The Constitutional Court held that such limitations could only be lawful when authorised by a court decision involving prior judicial review, stating as follows:

 “... [T]he procedure for judicial review of an authorisation to carry out an operational‑search activity involving a limitation of the constitutional rights of citizens, as provided for in section 9 of the Act, consists of neither judicial proceedings nor even preparatory steps for a court hearing: there are still no parties to the legal relationship, as is also typical in cases where, for example, criminal proceedings are brought on the basis of a fact and it is unknown whether an act can be considered an offence or who committed or is committing it; in a procedure in which judicial authorisation for investigative measures is sought, the person being investigated is not a party to the process and should not know about it; there cannot be openness, transparency and adversarial proceedings, otherwise covert investigative measures would simply not be possible and the investigative activity itself would become meaningless.

At the same time, the non-participation of the investigated person in the court hearing concerning the authorisation to carry out an operational-search activity involving the restriction of constitutional rights and freedoms does not relieve the court of its obligation to fully verify the grounds and conditions for carrying out such a measure.”


24.  On 5 February 2009 the Constitutional Court gave another decision on a constitutional complaint by the first applicant challenging the provisions of the 2001 Code of Criminal Procedure. The Constitutional Court concluded that since the criminal proceedings against the applicant had been instituted after he had lost his parliamentary immunity and his criminal liability had not been connected to his former position as a member of the Federation Council, the applicant’s constitutional rights had not been breached.

THE LAW

I.        ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION on ACCOUNT OF THE TRIAL held IN CAMERA


25.  The applicants complained that because the trial in their criminal case had been held in camera, they had been deprived of their right to a fair hearing as provided for in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A.    Admissibility


26.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.    Merits

1.     The parties’ submissions


27.  The applicants submitted that under Russian law, a trial court could decide to hold hearings in camera in respect of an entire case or part of a case. The parties agreed that only one volume of the case file had contained documents marked “top secret”. The domestic court had ignored the applicants’ request for a public hearing after the secret files had been examined during the hearings in camera.


28.  The Government asserted that the decision to hold closed hearings had been given by the trial court on the grounds that an open trial could have led to the disclosure of secrets protected by federal law. The examination of the files marked “top secret” could not have been carried out in isolation from the examination of other evidence in the criminal case. The proceedings in camera had been held in accordance with the requirements of national criminal procedure law, and they had been balanced against the applicants’ rights to a fair trial. Moreover, the applicants had enjoyed their right to an open trial on appeal.

2.     The Court’s assessment

(a)    General principles


29.  The Court reiterates that while the Convention does not prohibit the holding of proceedings, whether wholly or partly, in camera, it must be strictly required by the circumstances of the case (see Welke and Białek v. Poland, no. 15924/05, § 74, 1 March 2011, and Martinie v. France [GC], no. 58675/00, § 40, ECHR 2006‑VI), even where an applicant would otherwise be afforded an adequate opportunity to put forward a defence with due regard to his right to an oral hearing and the principles of equality of arms and adversarial procedure (see Kilin v. Russia, no. 10271/12, §§ 111-12, 11 May 2021).


30.  The Court has set out a test of strict necessity (appropriateness) whatever the justification advanced for excluding the public from a trial (see Chaushev and Others v. Russia, nos. 37037/03 and 2 others, § 24, 25 October 2016, and Yam v. the United Kingdom, no. 31295/11, §§ 54-55, 16 January 2020).


31.  The test for the appropriateness of holding a trial in camera includes the following cumulative elements. Firstly, it is for the domestic court to decide whether the trial should be open or closed. A decision to hold proceedings in camera must contain sufficient reasoning (see, mutatis mutandis, Mtchedlishvili v. Georgia, no. 894/12, §§ 31-33, 25 February 2021). Secondly, security measures should be narrowly tailored and comply with the principle of necessity. The judicial authorities should thoroughly consider all possible alternatives to ensure safety and security in the courtroom and give preference to a less strict measure over a stricter one when it can achieve the same purpose (see Krestovskiy v. Russia, no. 14040/03, § 29, 28 October 2010). Thirdly, the Court’s assessment of whether the exclusion of the public and the press met the strict necessity test does not necessarily require having access to the material on which that assessment was made at the domestic level (see Yam, cited above, § 55). Lastly, even where national security is at stake, measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision (ibid., §§ 56-57).


32.  Moreover, should the trial hearings be held outside the courtroom, the State is under an obligation to take compensatory measures so as to ensure that the public and the media are duly informed about the place of the hearing and are granted effective access (see Riepan v. Austria, no. 35115/97, §§ 28‑29, ECHR 2000‑XII).

(b)    Application of the above principles in the present case


33.  The applicants did not contest the lawfulness of the State’s right to classify some of the case-file material which might have raised sensitive national security concerns. Nor did they contest the reasonableness of classifying one of the volumes of the case file. The issue in the present case is whether the domestic courts met the necessity requirements in holding all the hearings in camera and whether the decision to hold part of those hearings on the premises of SIZO no. 2 was balanced against the applicants’ right to a fair trial.


34.  Firstly, the decision to hold the hearings in camera was given by the trial court, that is, the Moscow City Court, acting as the first-instance court, on account of the classified material in the case file (see paragraphs 13-14 above). The documents before the Court do not specify the types of material which were classified. Similarly, they do not specify the reasons for classifying the material or, subsequently, the proceedings as a whole.


35.  Turning to the second element of the strict necessity test, the Court notes that after the examination of the classified material in camera, the applicants submitted an unsuccessful request to allow the public to attend the proceedings. The domestic court inexplicably held that the trial as a whole should be closed regardless of the specific documents to be examined. The Government failed to provide the Court with material confirming that the domestic court had considered any alternatives to the exclusion of the public from the proceedings (see, mutatis mutandis, Krestovskiy, cited above, § 29).


36.  Thirdly, the Court reiterates that the application of the strict necessity test can present particular challenges when the ground invoked for holding part of a trial in camera concerns national security (see Yam, cited above, § 55). From this perspective, the Court will not assess the classified material in the applicants’ case-file, but rather the reasoning put forward by the domestic courts. Considering the material in its possession, the Court is not able to assess the reasonableness of classifying the files.


37.  The Supreme Court of the Russian Federation acted as a court of second instance, examining the applicants’ complaint under the rules in respect of cassation proceedings (see paragraphs 14-16 above and Berdzenishvili, cited above). The fourth element of the strict necessity test was not met during the domestic proceedings either, since the Supreme Court’s consideration of the applicants’ cassation appeal was unable to rectify the situation.


38.  Thus, the decision to hold the proceedings in camera did not meet the cumulative elements of the strict necessity test.


39.  The submissions before the Court do not indicate that the domestic courts gave narrowly tailored reasoning in favour of granting the prosecutor’s request for a hearing to be held outside the courtroom on the premises of SIZO no. 2. The Government failed to provide convincing explanations as to the reasons preventing the hearing from being held in the courtroom. Furthermore, there is no indication that sufficient compensatory measures were provided to ensure the fairness of those proceedings.


40.  The foregoing considerations are sufficient to enable the Court to conclude that the trial in the applicants’ case did not meet the requirements of the strict necessity test for the lawfulness of holding the proceedings in camera.


41.  There has accordingly been a violation of Article 6 § 1 of the Convention.

II.      ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION


42.  The first applicant complained that the interception of his communications had violated the right to respect for his private life as provided for in Article 8 of the Convention, which reads as follows:

“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.”

A.    Admissibility


43.  The Government referred to the provisions of the 1995 Operational‑Search Activities Act, by which a person who believed that his or her privacy rights had been breached could appeal to higher authorities against the activities in question. The first applicant had had such an opportunity even though the interception had been aimed at third parties.


44.  The Government submitted in the alternative that, should the Court find that there had been no effective remedy, the first applicant had in any event failed to submit the application within the six-month time-limit. The domestic court proceedings had commenced on 13 May 2007, whereas the application with the Court had been lodged on 18 May 2009.


45.  Referring to the Court’s case-law, the first applicant argued that he had not had an effective remedy to challenge the interception, of which he had learned only during the criminal proceedings against him. In that connection he also noted that the Government had failed to provide the Court with any domestic-law provisions authorising individuals, other than those explicitly mentioned in the decision to conduct an operational activity, to have the right to challenge it. Furthermore, since the results of the interception had been classified, the applicant had been deprived of the possibility of contesting the order to intercept his communications.


46.  In respect of the six-month time-limit for lodging the application with the Court, the first applicant submitted that the recordings had become a part of the evidence against him which had to be evaluated by the trial court, and subsequently by the Supreme Court in the course of cassation proceedings. Thus, the time-limit for lodging the application with the Court had been observed (see paragraph 11 above).


47.  The Court has already noted that the measures which the Government referred to in their submissions cannot be regarded as effective (see Akhlyustin, cited above, §§ 24-27). The complaint also complies with the six‑month time-limit, since the latter shall be counted from the date of the appeal decision in the applicants’ case (see Zubkov and Others v. Russia, nos. 29431/05 and 2 others, §§ 85-111, 7 November 2017, and Akhlyustin, cited above, §§ 28-29). This complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.    Merits

1.     The parties’ submissions


48.  The first applicant noted that the operational experiment had been conducted without judicial authorisation, in breach of the Code of Criminal Procedure. Furthermore, the Operational-Search Activities Act had failed to meet the “quality of the law” requirement by establishing a judicial authorisation procedure in respect of a limited list of operational-search activities. This had contravened the guarantees of immunity for members of the Federation Council (see paragraphs 20-22 above).


49.  The first applicant also submitted that the operational experiment had been conducted in breach of domestic law, and in particular of the parliamentary immunity rules, since his identity had been established by 20 May 2006 at the latest, i.e. right after the interception of the Mr P.’s communications had been approved (see paragraph 7 above). Thus, the State agents had to have known about the first applicant’s special status.


50.  With reference to the Court’s position in Roman Zakharov v. Russia ([GC], no. 47143/06, § 225, ECHR 2015), the first applicant submitted that his communications had been intercepted in the absence of a regulation indicating the scope of the authorities’ discretion.


51.  The Government contended that the identity of the first applicant had been established only after the end of the operational experiment on 2 June 2006 and that he had not been the subject of the interception measures. Before that time, the first applicant had been considered an unidentified accomplice to the offence.


52.  The Government also argued that the domestic court had assessed the lawfulness of the operational-search activities. Referring to the decisions of the Constitutional Court of the Russian Federation (see paragraphs 23-24 above), they asserted that parliamentary immunity was not a personal privilege allowing exemption from criminal liability for offences unrelated to parliamentary activities. In the case at hand, the intercepted information had not been related to the activities of the first applicant as a member of parliament. Moreover, the Federation Council had deprived him of his status on 23 June 2006, whereas the criminal proceedings against him had been instituted on 7 February 2007, after he had ceased to be a member of the Federation Council.

2.     The Court’s assessment

(a)    General principles


53.  The Court has established that the surveillance of communications and telephone conversations (including calls made from business premises as well as from private homes) is covered by the notion of private life and correspondence under Article 8 (see, among other authorities, Halford v. the United Kingdom, 25 June 1997, § 44, Reports of Judgments and Decisions 1997‑III, and Malone v. the United Kingdom, 2 August 1984, § 64, Series A no. 82).


54.  The Court reiterates that covert surveillance measures, including video and audio recording of applicants’ communications, amount to an interference with their right to respect for their private life within the meaning of Article 8 § 1 of the Convention, and must be justified under Article 8 § 2 (see, for example, Bykov v. Russia [GC], no. 4378/02, § 72, 10 March 2009). It further reiterates that it is incumbent on the domestic courts to carry out an effective judicial review of the lawfulness and “necessity in a democratic society” of the contested surveillance measures and to furnish sufficient safeguards against arbitrariness for the purposes of Article 8 § 2 of the Convention (see Zubkov and Others, cited above, § 131).


55.  Referring to the standards of the quality of the law set out in its case‑law, the Court notes that the interests of the investigation must be balanced against the protection of the applicants’ privacy rights and must meet the necessary guarantees against arbitrariness (see Bykov, cited above, §§ 76-80). In this connection, the Court has recently held that a judicial authorisation serving as the basis for an interception cannot be drafted in such vague terms as to leave room for speculation and assumptions with regard to its content and, most importantly, to the person in whose respect the given measure is being applied (see Hambardzumyan v. Armenia, no. 43478/11, § 66, 5 December 2019).

(b)    Application of the above principles in the present case


56.  The Court reiterates that on several previous occasions it has found violations of the right to privacy on account of the lack of procedural guarantees against arbitrary interference with communications (see Bykov, cited above, §§ 75-81; Radzhab Magomedov v. Russia, no. 20933/08, §§ 80‑84, 20 December 2016; and Zubkov and Others, § 131, cited above). In the present case it sees no reason to rule differently. Thus, the first argument of the applicant as to the quality of the law is by itself sufficient to find a violation of Article 8.


57.  Addressing the first applicant’s argument, the Court notes that the Government’s contention (see paragraph 52 above) is unconvincing. It follows from the facts of the case, and it has not been disputed by the parties, that the first applicant’s communications were recorded at least three times before he was identified (see paragraph 7 above). This finding is reinforced by the fact that the Federal Security Service was aiming to intercept the communications of all the suspects, who had initiated the negotiations with Mr P. (see paragraph 6 above), including those whose identity was unknown, thus rendering the applicant a suspect ab initio.


58.  The Government failed to provide any convincing explanations as to whether the interests of the investigation were balanced against the protection of the first applicant’s privacy rights (see Bykov, cited above, §§ 75-81). From this perspective the issue of the alleged violation of the applicant’s parliamentary immunity is not decisive in the proceedings before the Court, since the deficiencies of the domestic regulation on surveillance as such did not provide for adequate procedural guarantees against the arbitrariness of this investigative measure.


59.  The foregoing considerations are sufficient to enable the Court to conclude that the covert surveillance measures carried out against the first applicant were not “in accordance with the law” and violated his right to respect for his private life.


60.  There has accordingly been a violation of Article 8 of the Convention in respect of the first applicant.

III.   APPLICATION OF ARTICLE 41 OF THE CONVENTION

61.  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.”

A.    Damage


62.  The applicants claimed a total of 70,000 euros (EUR) in respect of non-pecuniary damage, of which EUR 50,000 should be awarded to the first applicant for the violations of Articles 6 and 8 and EUR 20,000 should be awarded to the second applicant for the violation of Article 6.


63.  The Government argued that the requested amount was excessive and contrary to the Court’s case-law.


64.  The Court awards EUR 8,000 to the first applicant and EUR 6,000 to the second applicant in respect of non-pecuniary damage, plus any tax that may be chargeable.

B.    Costs and expenses


65.  The first applicant also claimed 450,000 Russian roubles for the costs and expenses incurred before the domestic courts and the Court. The second applicant claimed EUR 3,000 for the costs and expenses before the Court.


66.  The Government argued that there was no proof that the requested amounts had actually been incurred since the applicants had neither indicated the lawyers’ hourly rate nor provided a detailed breakdown of the total time the lawyers had spent on the case.


67.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claims for costs and expenses in the domestic proceedings and for the proceedings before the Court.

C.    Default interest


68.  The Court 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.      Declares the application admissible;

2.      Holds that there has been a violation of Article 6 of the Convention in respect of both applicants;

3.      Holds that there has been a violation of Article 8 of the Convention in respect of the first applicant;

4.      Holds

(a)  that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 8,000 (eight thousand euros) to the first applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 6,000 (six thousand euros) to the second applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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;

5.      Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 4 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

          Olga Chernishova                                           Georgios A. Serghides
          Deputy Registrar                                                      President


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