The ECHR judgment of 16 March 2017 in the case of Modestou v. Greece (application No. 51693/13).
In 2013, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Greece.
In the case, the applicant's complaint on the conduct of searches and seizure of property in his absence was successfully examined. In the case there was a violation of the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
In September 2010, as part of the preliminary police investigation, the applicant's house was searched and two computers and hundreds of documents were confiscated according to the orders of the prosecutor. In November 2012 the applicant appealed to the Appeals Chamber of the Court of Appeal with a request to declare the search null and void, the cancellation of the order to seize and return seized items. However, his application was rejected in February 2013. The judgment was based, inter alia, on assessing whether the search and seizure activities could be conducted in the context of a preliminary police investigation. The applicant unsuccessfully appealed this decision.
ISSUES OF LAW
Concerning compliance with Article 8 of the Convention. The search by the investigators of the applicant's private home and business premises, the seizure of several documents and computers belonging to him, constituted an interference with his right to respect for the home, as provided by law.
The search was conducted as part of the preliminary police investigation before the institution of the criminal proceedings against the applicant. His goal was to find evidence and evidence of involvement in criminal activities. Accordingly, he pursued the goal of preventing riots and crimes. The search in the preliminary police investigation must be accompanied by adequate and sufficient guarantees to ensure that it is not used as a means of providing the police with compromising material on persons who have not yet been recognized as suspected of committing a crime.
The warrant for the search, issued by the prosecutor, was formulated in general terms. There are situations in which it was impossible to draw up an order with a high degree of accuracy, as in the present case, where a search was made to collect evidence in connection with suspicions of criminal activity affecting several individuals for extended periods. However, in such cases and, in particular, as in the present case, if domestic law does not provide for a preliminary judicial review of the legality and the need for this investigative measure, there must be other guarantees, especially in terms of the execution of the search warrant, in order to balance the shortcomings of the issuance and content of the warrant .
The search in the present case was accompanied by some procedural guarantees. First, it was sanctioned by the prosecutor at the appellate court, which issued a warrant for the search and instructed him to conduct the police department. Secondly, the search was conducted by a police officer accompanied by a deputy prosecutor. The applicant was not present during the search, which lasted 12.5 hours, and it is not clear from the case materials whether the investigators tried to inform him of their presence or their actions, although the Code of Criminal Procedure requires the person conducting the search to invite the person occupying the premises , to participate in it. Even assuming that the authorities intended to use the surprise effect without notifying the applicant in advance, nothing prevented them from trying to contact him in accordance with the law during the very search, which lasted several hours.
Finally, there was no immediate retrospective judicial review. The search resulted in the seizure of two computers and hundreds of documents, and it was not established whether all these documents were directly related to the crime under investigation. On the basis of the wording of the warrant, questions could also arise as to whether the applicant was notified of the search grounds that would allow him to ascertain that the search is limited to the investigation of the crime mentioned in the search and to appeal any abuse in this regard. The indictment chamber of the appellate court addressed by the applicant rendered its decision more than two years after the events and devoted most of it to determining whether the search and seizure activities could be conducted as part of a preliminary police investigation. Consequently, the domestic authorities did not fulfill their obligation to bring "relevant and sufficient" reasons for justifying the issuance of a search warrant. In such circumstances, the measures complained of were not reasonably proportionate to the legitimate aims pursued, taking into account the public interest in ensuring respect for the home.
The violation of the requirements of Article 8 of the Convention (unanimously) was committed.
In the application of Article 41 of the Convention. The Court awarded the applicant EUR 2,000 in respect of non-pecuniary damage.