The ECHR found a violation of the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR found a violation of the requirements of Article 8 of the Convention for the Protection of Human Ri Сведения: 2018-09-01 07:33:46

The ECHR judgment of November 7, 2017 in the case of Dudchenko v. The Russian Federation (complaint No. 37717/05).

In 2005, the applicant was assisted in the preparation of the complaint. Subsequently, the complaint was communicated to the Russian Federation.

The case successfully considered the applicant's complaint about the secret surveillance established for him, including the wiretapping of telephone conversations with his accomplice in the criminal case and the defender, as well as violation of his right to respect for his private life and correspondence. The case involved violations of the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.


CIRCUMSTANCES OF THE CASE


The applicant complained, in particular, of the secret surveillance established for him, including the wiretapping of telephone conversations with his accomplice in the criminal case and the defender. He referred to a violation of his right to respect for his private life and correspondence.


ISSUES OF LAW


Concerning compliance with Article 8 of the Convention. (a) Telephone conversations with an accomplice. The hearing of the applicant's telephone conversations constituted interference with the exercise of his rights under Article 8 of the Convention.

With regard to the question of whether the interference was "prescribed by law", the Court found in the Roman Zakharov case (Roman Zakharov v. Russia, judgment of 4 December 2015, judgment of the European Court of Human Rights) , complaint No. 47143/06, see Bulletin of the European Court of Human Rights 2016. No. 6) that the procedures for obtaining judicial authorization provided for by the legislation of the Russian Federation could not ensure that the measures of unofficial observation were not assigned systematically, incorrectly or without above necessary and necessary consideration. One of the problems identified in the above case was that, in everyday practice, the courts of the Russian Federation did not ascertain whether there was a "reasonable suspicion" against the person concerned and did not apply the tests of "necessity" and "proportionality".

The Government did not provide evidence that the Russian courts had acted differently in the applicant's case. There is no information that any information or documents confirming suspicions against the applicant were indeed presented to the judge. The only reason given by the court to justify the use of surveillance measures was that it was "impossible" to obtain the information necessary to expose illegal activity (the applicant), through an open investigation, "without explaining how the court came to this conclusion. Such a vague and unreasonable statement was not enough to justify the decision to authorize a long (180-day) unspoken surveillance operation that involved serious interference with the right to respect for private life and the applicant's correspondence.


DECISION


The case involved a violation of the requirements of Article 8 of the Convention (adopted by six votes "for" with one - "against").

(b) Telephone conversations with the defender. In order to avoid abuse of authority in cases where, as a result of tacit supervision measures, material obtained under the protection of an advocate's secret is provided, the law should provide for the following minimum guarantees. First, the law should clearly define the scope of the legal professional privilege for maintaining the legal profession and indicate how, under what conditions and by whom the distinction between privileged and unprivileged material should be established. Since confidential relations between a lawyer and his clients are a particularly sensitive area that directly affects the rights of defense, it is unacceptable for this task to be entrusted to a representative of the executive in the absence of supervision by an independent judge. Secondly, the legal norms regarding the consideration, use and storage of obtained material subject to legal secrecy, the precautions to be taken when communicating information to other parties, and the circumstances in which the records could or should have been deleted or the material destroyed, must provide sufficient guarantees for the protection of material covered by an attorney's secret, obtained as a result of secret surveillance. In particular, the legislation of a State Party to the Convention should set out in sufficient detail and in detail the following: the procedures for applying to an independent supervisory authority for reviewing cases in which, as a result of secret surveillance, material received for which a lawyer's secret is being disseminated, procedures for the safe destruction of such material, conditions in compliance with which it can be stored and used in criminal proceedings and investigations conducted by law enforcement agencies and procedures for safe hp the dissemination of such material and its subsequent destruction, once it ceased to be necessary for any authorized purposes.

The legislation of the Russian Federation has proclaimed the protection of attorney secrets, which is understood as covering any information relating to the client's legal representation by a lawyer. However, it does not contain any specific guarantees applicable to the interception of lawyer communications, and lawyers are subject to the same legal provisions on interception of communications as to any other persons. The Court has already established in Roman Zakharov's case that these legal norms do not provide adequate and effective guarantees against arbitrariness and risk of abuse and therefore can not reduce "interference" to "necessary in a democratic society". The most important thing in the present case is that the legislation of the Russian Federation did not provide for applicable safeguards or procedures to be enforced in cases where when listening to a suspect phone, the authorities accidentally listen to the suspect's talks with the defense attorney.


DECISION


The case involved a violation of the requirements of Article 8 of the Convention (adopted by six votes "for" with one - "against").

The Court also unanimously found that there had been violations of the requirements of Article 3 of the Convention in connection with the conditions of the applicant's detention during the trial and the conditions of the applicant's transport between the isolators, and six in favor, one in the case There has been a violation of the requirements of Article 5 § 3 of the Convention, since his detention did not have sufficient grounds. Finally, the Court unanimously decided that the case in point 1 and 3, paragraph 3 (c), of the Convention had not been violated on the grounds that the removal of the defender elected by the applicant (the applicant had applied for his brother as a defense counsel, although he already had defender) did not inflict irreparable damage to the rights of the applicant's defense or did not diminish the fairness of the proceedings as a whole.


COMPENSATION


In the application of Article 41 of the Convention. The Court awarded the applicant EUR 14,000 in respect of non-pecuniary damage.

 

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