The ECHR judgment of 13 February 2018 in the case of Ivashchenko v. Russia (application No. 61064/10).
In 2010, the applicant was assisted in preparing the application. Subsequently, the application was communicated to the Russian Federation.
In the case, a complaint was successfully considered on the authority of the customs service to process and copy personal data in electronic form without having a well-founded suspicion of committing an offense. 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
The applicant, who was a photojournalist, went to Abkhazia to prepare a report. Upon his return to the territory of the Russian Federation, he was stopped at a customs checkpoint and was told that it was necessary to verify the information specified by the applicant in the customs declaration by conducting an "inspection check" of things in the bag and backpack of the applicant. Customs officers, acting in accordance with the provisions of the domestic law, checked the data in the applicant's laptop, and then copied them to a portable (or external) hard drive, and then copied to six DVDs. Subsequently, the applicant was informed that the report was sent to a forensic forensic examination in order to determine whether the data from the laptop contained any prohibited "extremist" materials (the results of the examination were negative). The applicant unsuccessfully tried to appeal the actions of customs officers in court.
In the course of the conventional proceedings, the applicant alleged, inter alia, referring to Article 8 of the Convention that the customs officers had illegally and without any reasonable suspicion examined and copied electronic data from his laptop.
ISSUES OF LAW
Concerning compliance with Article 8 of the Convention. Since sufficient evidence was not provided to conclude that the applicant's "correspondence" had suffered as a result of the actions of customs officials, the Court considered it more appropriate to focus on the definition of "private life".
Distinguishing the present case from the case of Gillan and Quinton v. United Kingdom (application no. 4158/05), the Court noted that the verification of the data in the applicant's laptop (presumably without a reasonable suspicion of having committed a crime or other unlawful act), copying of the personal data of the applicant and his working materials with their subsequent transfer to the expert for consideration and withholding for approximately two years went beyond the procedure that could be considered "routine", not affecting the rights of the applicant and for which it is usually necessary to obtain the appropriate authorization. The applicant did not have the opportunity to choose whether he wanted himself or for his personal belongings to be at the disposal of customs officers and, possibly, have passed customs inspection.
The case concerned cases of customs control over "items" that a person arriving at a customs post delivers and declares, and not security checks, in particular, checks conducted against a person or his or her personal belongings before admission to board an airplane on train and the like. In the Court's opinion, by providing these items for control by the customs service, the person concerned does not refuse or otherwise refrain from exercising the right to respect for his or her "private life" or under certain circumstances "correspondence". Thus, the applicant could have invoked the right to respect for his private life, and there has been a violation of Article 8 of the Convention.
The European Court went on to consider whether the interference was justified. Taking into account the arguments of the decisions of the domestic authorities, the Court is not convinced that the combined interpretation of the relevant provisions of the Customs Code of the Russian Federation and other rules of law would constitute an envisioned interpretation of the legislation of the respondent State and would constitute the legal basis for copying data from electronic documents in the "repository", which was the applicant's laptop.
In addition, the guarantees provided for in the legislation of the Russian Federation were not the proper basis for granting the executive bodies broad powers that could provide individuals with adequate protection against arbitrary interference.
First, the Court concluded that at the stage of obtaining a permit for verification, there was no clear requirement that it, and above all, the copying of any data, be carried out with a mandatory assessment of the proportionality of the adoption of this measure. Obviously, the usual approach of customs officials to a random survey of "items" was not appropriate for electronic data.
Secondly, it seems that the comprehensive measure applied in the applicant's case should not have been based on any manifestation of reasonable suspicion that the person completing the customs declaration committed the crime. Such an obvious lack of any need for a reasonable suspicion of a crime was aggravated by the fact that state authorities, especially the courts, did not attempt to identify and apply to the established facts definitions from the relevant domestic legislation, such as "propaganda of fascism" or "social, racial, ethnic or religious hatred. " See Decree No. 310 of the President of the Russian Federation of March 23, 1995, "On Measures to Ensure Coordinated Actions by State Authorities in Combating Fascism and Other Forms of Political Extremism in the Russian Federation."
Thirdly, the Court was not convinced that the fact that the applicant was returning from the region with a disputed status (Abkhazia) was in itself sufficient grounds for extensive examination and copying of the applicant's electronic documents in connection with their possible "extremist" content.
In conclusion, although the exercise of the inspection and random inspection powers was subject to judicial review, the breadth of powers was such that the applicant was faced with great difficulties in proving that the actions of the customs officers were illegal, unreasonable or otherwise contrary to the legislation of the Russian Federation. In the case concerning freedom of assembly, Lashmankin and Others v. Russia (Judgment in the case of 7 February 2017, application No. 57818/09 and 14 others), the Court noted that, that the limits of judicial review were limited and did not meet the necessary rules of "proportionality" and "necessity in a democratic society." This assessment is applicable in the present case in the context of arbitrary decisions and customs actions in connection with the copying of electronic data, as the applicant complained of during the trial.
Thus, there were shortcomings in the domestic regulatory system, since the authorities of the respondent State, including the courts, were not obliged to give relevant and sufficient reasons to justify the interference in the present case, and at no stage of the proceedings was in any way accepted in attention to the fact that the applicant's materials related to journalism.
Consequently, the authorities of the Russian Federation did not convincingly demonstrate that the relevant legislation and practice would provide adequate and effective safeguards against abuse of authority in the event that the sampling procedure applied to data stored in an electronic device. Consequently, the intervention was not "prescribed by law".
The violation of the requirements of Article 8 of the Convention (unanimously) was committed.
In application of Article 41 of the Convention, the Court awarded the applicant EUR 3,000 in respect of non-pecuniary damage.