ECHR judgments of 7 November 2017 in the case of Zubkov and Others and Others v. Russia (application No. 29431/05 and two others), Akhlyustin (Akhlyustin) v. Russian Federation (application No. 21200/05), "Moskalev v. Russia" (application No. 44045/05), "Konstantin Moskalev (Konstantin Moskalev) v. Russian Federation" (application No. 59589/10).
In 2005, the applicants were assisted in the preparation of applications. Subsequently, applications were communicated to the Russian Federation.
In the case, complaints about the fact that they were subjected to secret surveillance, listening to their telephone conversations, one of the applicants complained about the hidden shooting of his meetings with acquaintances in a rented apartment, and another for audiovisual surveillance of his office, as well as violation of their right to respect for private life, home 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 applicants complained, inter alia, that they had undergone an unspoken observation, in particular, the tapping of their telephone conversations. One of the applicants complained about the hidden shooting of his meetings with friends in a rented apartment, and another - on audiovisual surveillance of his office. They referred to alleged violations of their right to respect for private life, home and correspondence.
ISSUES OF LAW
Concerning compliance with Article 8 of the Convention. (a) Admissibility of the complaint. (i) Exhaustion of domestic remedies. The Government claimed that the applicants for Zubkov and others, Ahlustin and Moskalev had not exhausted domestic remedies, since they did not apply to the court in accordance with Article 5 of the Federal Law "On Operative-Search Activity" (hereinafter - the Law on the RDD).
The Court notes that the amount of the complaint to the court under Article 5 of the Law on the RDD, regardless of whether it was filed in accordance with Article 125 of the Code of Criminal Procedure (if the criminal investigation was still ongoing) or in accordance with the Law on Appealing to the Court of Action and chapter 25 of the Code of Civil Procedure was limited to verifying whether the officials of the State conducting the monitoring activity observed in a manner consistent with applicable legal requirements and observed They judicial authorization conditions. The audit did not affect the legal and factual grounds supporting the judicial authorization, that is, if there were any relevant and sufficient reasons for resolving the unspoken observation.
The law did not oblige the courts to consider the issues of "necessity in a democratic society", in particular, whether the impugned acts of urgent social necessity were answerable and whether they were proportional to any legitimate aim pursued, the principles that form the basis for the European Court's analysis of complaints under Article 8 of the Convention.
In the context of Article 8 of the Convention, a remedy in the form of an appeal to a court unable to ensure that the impugned interference with an urgent public need was in order could not be considered an effective remedy. Taking into account the above, the complaint to the court in accordance with Article 5 of the Law on the RAN was not an effective legal remedy requiring exhaustion.
The preliminary objection of the Government of the Russian Federation was rejected.
(ii) Compliance with the six-month rule. All but one of the applicants filed their complaints within six months of the final decision in the criminal proceedings against them. It is significant that they learned about the unspoken observation during these proceedings. In the Zubkov and Others case, the Court notes that it is the first time that it considers the remedies available in the legal system of the Russian Federation with respect to complaints of unauthorized observation, which the subjects of observation learned during the criminal proceedings against them. Given the uncertainty about the effectiveness of these remedies and, in particular, that during the period relevant to the circumstances of the case it could not be presumed that raising the issue of tacit observation in criminal proceedings was clearly an ineffective remedy was not unreasonable for the applicants try to use an available remedy to enable the courts of the Russian Federation to resolve the problem within their legal system, thereby respecting the The fact that the protection mechanism established by the Convention is subsidiary to domestic systems for the protection of human rights.
The applicants learned of the unofficial observation during the criminal proceedings against them, when the prosecutor's office used the intercepted information as evidence of allegations against them. In such circumstances, it was reasonable to bring their complaints to the attention of the respondent State's courts by means of remedies provided by the criminal procedure law. The explanations of the parties do not give grounds for believing that the applicants were aware or should have been aware of the uselessness of such a course of action. In addition, given the unspoken nature of the observation, the accused could face difficulties in gaining access to documents related to them. This, in turn, could prevent them from fully understanding the circumstances of the observation and, most importantly, the reasons for its appointment. Thus, it was not unreasonable for the applicants to wait until they received documents establishing the facts relevant to the application to the European Court, before filing their complaint. Consequently, the applicants did not allow non-compliance with the six-month rule.
The complaint was declared admissible for consideration on the merits (unanimously).
(b) Merits. Measures aimed at listening to the telephone conversations of the applicants constituted an interference with the exercise of their rights under Article 8 of the Convention.
As to whether the interference was "prescribed by law", the Court pointed out in the case of Roman Zakharov 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 haphazardly, incorrectly or without proper 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 courts of the Russian Federation had acted otherwise in the applicants' case. Since copies of the monitoring sanctions against the applicants were not provided, the Court can not verify whether the sanctions were based on reasonable suspicion or whether there were "relevant" and "sufficient" reasons for justifying the measures taken.
In addition, it is significant that applicants were denied access to surveillance sanctions. In spite of the fact that there could be valid reasons for keeping secret the sanction for holding secret surveillance in full or in part from its subject, even if the latter learned of its existence (for example, in order to avoid disclosing working methods, spheres of activity and personalities of private employees), in At the same time, the information contained in the decision on the sanction may be critical for proceedings to appeal against legal and factual grounds for observation. Accordingly, in the presence of an application for disclosure of the sanction for unofficial observation, the domestic courts had to ensure an appropriate balance between the interests of the subject and public interest, and the subject of surveillance should have access to these documents if there were no convincing reasons preventing such a decision.
In the cases of Zubkov and others, Konstantin Moskalev and Moskalev, the Court observes that it has not been established that the courts of the Russian Federation, which sanctioned unofficial observation against the applicants, have ascertained the existence of "reasonable suspicion" against them and applied tests of "proportionality" and "necessity" in a democratic society. "
In Zubkov's case, the state authorities referred solely to the confidentiality of the denial of access permits and did not balance the interests of the applicants and the public interest. In addition, they did not indicate why disclosure of permits after the termination of surveillance and records could pose a threat to the effective administration of justice or any other legitimate public interest. This refusal to disclose permits in the absence of a good reason deprived the applicants of any possibility of verifying the legality and necessity of the measure by an independent court in the light of the relative principles of Article 8 of the Convention.
In the case of Konstantin Moskalev, the European Court noted that in the case of Roman Zakharov, he concluded that the "urgent procedure" in accordance with paragraph 3 of Article 8 of the Law on the RAN does not provide sufficient guarantees that it is used only moderately and only in duly justified cases . In particular, although the legislation of the Russian Federation requires that the judge be immediately informed of every case of urgent listening, the judge is not entitled to assess the justification of the urgent procedure. These shortcomings were also noted in the case of Konstantin Moskalev. The judge, notified of the need for urgent wiretapping, did not conduct a judicial review of the decision of the police to listen to his phone, and the independent body did not assess whether the application of the urgent procedure was justified and whether it was based on reasonable suspicion.
In the case of Moskalev, there was no evidence that the judge was provided with information or documents confirming the suspicion against the applicant. In addition, there was no indication that the court assessed the proportionality of the monitoring measures or whether a fair balance was established between the right to respect for private life and correspondence and the need for observation. The only reason given by the court to justify the observation was that the applicant was suspected of committing a serious crime. Although this reason was undoubtedly attributable, it did not justify a long and extensive observation by itself.
There were violations of the requirements of Article 8 of the Convention (unanimously).
The Court also found a violation of the "quality of law" requirement in the Ahlustin case, which concerned audiovisual surveillance in the applicant's office.
As in the case of Bykov v. The Russian Federation (Bykov v. Russia, judgment of 10 March 2009, complaint No. 4378/02), which concerned listening to the applicant's negotiations with a hidden radio transmitter , Akhlyustin was almost not provided, if any, with guarantees in the procedure for appointing and executing a surveillance measure against him. In particular, the legal discretion of the authorities to designate "surveillance" was not limited by any conditions, and its scope and manner of implementation were not determined, and no other specific guarantees were provided. In the absence of specific rules containing safeguards, the Court did not find that the possibility of the applicant's initiation of proceedings to declare an observation unlawful or to exclude his findings from the evidence as obtained illegally met the requirements of the "quality of law" provided for by the law of the Russian Federation.
The violation of the requirements of Article 8 of the Convention (unanimously) was committed.
The Court also unanimously held that there had been a violation of Article 13 of the Convention in conjunction with Article 8 of the Convention in the case of Konstantin Moskalev, since the applicant did not have an effective remedy which allowed an assessment of whether the surveillance measures against him were "prescribed by law" , and whether they were "necessary in a democratic society" and that there had been a violation of the requirements of Article 5 § 4 of the Convention in respect of one of the applicants in Zubkov and others, The forehead of the detention order was not considered promptly.