ECHR judgment of September 27, 2018 in the case of Brazzi v. Italy (application. N 57278/11).
In 2011, the complainant was assisted in preparing an application. Subsequently, the application was communicated to Italy.
The case applications that the applicant complained unsuccessfully to the authorities about the illegality of the search, the measure, which he considered unfounded, and when considering the case before the European Court claimed that Italian law did not provide for effective judicial control in relation to such searches . The case is a violation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The search in the applicant's house was carried out as part of a tax audit on the basis of a decision of the prosecutor's office. Upon completion of the search, no evidence was seized, and the proceedings were terminated by the judge who conducted the preliminary investigation.
The applicant constantly but unsuccessfully complained to the authorities about the illegality of the search, a measure which, in his opinion, was unfounded, and argued in the European Court that the Italian law did not provide for effective judicial control in relation to such searches.
QUESTIONS OF RIGHT
Regarding compliance with subparagraph "b" of paragraph 3 of Article 35 of the Convention. The case itself did not have any financial implications, since it was a search of the dwelling that did not lead to the seizure of property or to any other encroachment on the property. Nevertheless, the seriousness of the violation should be assessed taking into account both the subjective perception of the applicant and the interests that were objectively affected in a particular case. In other words, the absence of significant damage may be based on such elements as the financial consequences of the dispute in question or the value of the dispute for the applicant.
The dispute concerned a matter of principle from the point of view of the applicant, namely his right to respect for his property and his home. For the applicant, who did not cease to challenge the legitimacy of the search in the competent authorities, the subjective significance of the question seems obvious. From the point of view of the interests objectively affected by the case, the case concerned the existence in the Italian legislation of effective judicial control over the search, that is, a crucial issue both at the domestic level and at the Convention level.
Consequently, the first requirement of Article 35 § 3 (b) of the Convention was not met, namely the absence of significant damage to the applicant.
RESOLUTION
The preliminary objection of the Italian authorities was rejected (adopted unanimously).
On the merits, the European Court unanimously determined that the interference with the applicant’s right to respect for his home, namely the search for the contested search, was not “prescribed by law” and resulted in a violation of Article 8 of the Convention, since Italian law, which did not provide for prior judicial review or effective control over the application of this measure a posteriori did not provide the applicant with sufficient guarantees against abuse or arbitrariness.
A posteriori (lat.) - from the later point of view, backdating.