20202/15;56469/15;56631/15;25803/16;36818/17;11430/18;19738/18;42165/19;64654/19;65280/19;5495/20;13810/20;927/22

THIRD SECTION CASE OF IVANOV AND OTHERS v. RUSSIA (Applications nos. 20202/15 and 12 others – see appended list)             JUDGMENT   STRASBOURG 6 February 2025   This judgment is final but it may be subject to editorial revision. In the case of Ivanov and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of:  Diana Kovatcheva, President,  Úna Ní Raifeartaigh,  Mateja Đurović, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 16 January 2025, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.  The Russian Government (“the Government”) were given notice of the applications. THE FACTS 3.  The list of applicants and the relevant details of the applications are set out in the appended table. 4.  The applicants complained of the secret surveillance in the context of criminal proceedings. Some applicants also raised other complaints under the provisions of the Convention. THE LAW JOINDER OF THE APPLICATIONS 5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. Jurisdiction 6.  The Court observes that the facts giving rise to the alleged violations of the Convention occurred prior to 16 September 2022, the date on which the Russian Federation ceased to be a party to the Convention. The Court therefore decides that it has jurisdiction to examine the present applications (see Fedotova and Others v. Russia [GC], nos. 40792/10 and 2 others, §§ 68‑73, 17 January 2023). ALLEGED VIOLATION OF ARTICLE 8 of the Convention 7.  The applicants complained principally of the secret surveillance in the context of criminal proceedings. Ms Novozhilova (application no. 56469/15) also alleged that the regional tax authorities had stored the recording of her telephone communications. The applicants relied, expressly or in substance, on Article 8 of the Convention. 8.  The Court reiterates that the measures aimed at interception of telephone communications amounted to an interference with the exercise of the rights set out in Article 8 of the Convention and that such interference will give rise to a breach of Article 8 of the Convention unless it can be shown that it was “in accordance with law”, pursued one or more legitimate aim or aims as defined in the second paragraph and was “necessary in a democratic society” to achieve those aims (see, among other authorities, Goranova‑Karaeneva v. Bulgaria, no. 12739/05, § 45, 8 March 2011). It further reiterates that it is the obligation of the domestic courts to carry out an effective judicial review of the lawfulness and “necessity in a democratic society” of the contested surveillance measures and to furnish sufficient safeguards against arbitrariness within the meaning of Article 8 § 2 of the Convention (see Zubkov and Others v. Russia, nos. 29431/05 and 2 others, §§ 131, 7 November 2017). The failure to comply with these requirements would lead the Court to conclude to a violation of the Article 8 of the Convention (see, for example, Dudchenko v. Russia, no. 37717/05, §§ 93‑100, 7 November 2017, in which it was established that the domestic courts failed to verify, when authorising covert surveillance in respect of the applicant, whether there was a “reasonable suspicion” against him and to apply the “necessity in a democratic society” and “proportionality” tests). 9.  The Court further refers to its earlier findings that (1) the Russian legislation which permitted the police to conduct secret surveillance without judicial authorisation fell short of the standards of the quality of law set out in Article 8 of the Convention (see Bykov v. Russia [GC], no. 4378/02, §§ 73‑83, 10 March 2009) and (2) the refusal on the part of the domestic authorities to disclose a surveillance authorisation to the applicants without a valid reason deprived them of any possibility to have the lawfulness of the surveillance measures and their “necessity in a democratic society” reviewed and amounted to a violation of Article 8 of the Convention (see, among other authorities, Šantare and Labazņikovs v. Latvia, no. 34148/07, §§ 60-62, 31 March 2016; Radzhab Magomedov v. Russia, no. 20933/08, §§ 80-84, 20 December 2016; and Zubkov and Others, cited above, §§ 122-32). 10.  The Court does not lose sight that in earlier cases against Russia it has not established an availability of effective remedies for the applicants to exhaust prior to introducing a complaint before the Court (see, for example, Zubkov and Others, cited above, §§ 85-99). In this connection, it reiterates that the applicants cannot be reproached for their attempt to bring their grievances to the attention of the domestic courts through the remedies which they mistakenly considered effective in the absence of evidence that they were aware or should have become aware of the futility of their course of action (ibid., §107 in fine). 11.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the cases under consideration (1) the interception and recording of the applicants’ communications conducted in the absence of a judicial authorisation were not accompanied by adequate safeguards against various possible abuses, were open to arbitrariness and inconsistent with the requirement of lawfulness, and (2) the domestic courts did not verify the existence of a “reasonable suspicion” and did not apply the “necessity in a democratic society test” when examining the applicants’ complaints. Moreover, (3) the refusal to disclose the surveillance authorisation to the applicants without any valid reason deprived them of any possibility to have the lawfulness of the measure, and its “necessity in a democratic society”, reviewed by an independent tribunal in the light of the relevant principles of Article 8 of the Convention. 12.  These complaints are therefore admissible and disclose a breach of Article 8 of the Convention. 13.  In view of the above findings, the Court does not consider it necessary to examine the remainder of Ms Novozhilova’s complaints. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 14.  Some applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see the appended table). These complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its well-established case law (see Idalov v. Russia [GC], no. 5826/03, §§ 103‑08 and 154‑58, 22 May 2012, regarding conditions of detention during transport and speediness of review of pre-trial detention; Tomov and Others v. Russia, nos. 18255/10 and 5 others, §§ 143-56, 9 April 2019, concerning the lack of an effective remedy in respect of the complaint about conditions of detention during transport; Karelin v. Russia, no. 926/08, 20 September 2016, concerning absence of a prosecuting party from the administrative proceedings; and Konstantin Moskalev v. Russia, no. 59589/10, §§ 23-36, 7 November 2017, concerning the lack of an effective remedy in respect of the complaint about the secret surveillance). APPLICATION OF ARTICLE 41 OF THE CONVENTION 15.  As to application no. 11430/18, regard being had to the documents in its possession and to its case-law (see, in particular, Roman Zakharov v. Russia [GC], no. 47143/06, § 311, ECHR 2015, which imposed on the respondent State a legal obligation, under Article 46 of the Convention, to implement, under the supervision of the Committee of Ministers, such measures as they consider appropriate to secure the right of the applicants and other persons in their position to respect of their private life), the Court considers that the finding of a violation constitutes in itself a sufficient just satisfaction. The Court also considers that the finding of a violation in application no. 36818/17 will constitute in itself sufficient just satisfaction (see, for similar reasoning, Ivanov and Others v. Russia [Committee], nos. 44363/14 and 2 others, § 12, 4 June 2020, and Puzanov v. Russia [Committee], nos. 26895/14 and 2 other applications, § 13, 15 September 2022). As to the remainder of the applications, regard being had to the documents in its possession and to its case‑law (see, in particular, Akhlyustin v. Russia, no. 21200/05, 7 November 2017, Zubkov and Others, cited above, Dudchenko, cited above, Moskalev v. Russia, no. 44045/05, 7 November 2017 and Konstantin Moskalev, also cited above), the Court considers it reasonable to award the sums indicated in the appended table. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Holds that it has jurisdiction to deal with these applications as they relate to facts that took place before 16 September 2022; Declares the applications admissible; Holds that these applications disclose a breach of Article 8 of the Convention concerning the secret surveillance in the context of criminal proceedings and that it is not necessary to examine separately the remainder of Ms Novozhilova’s complaints (application no. 56469/15); Holds that there has been a violation of the Convention as regards the other complaints raised under the well-established case-law of the Court (see the appended table); Holds that a finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants in applications nos. 11430/18 and 36818/17; Holds (a)  that the respondent State is to pay the remaining applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 6 February 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Viktoriya Maradudina Diana Kovatcheva  Acting Deputy Registrar President   APPENDIX List of applications raising complaints under Article 8 of the Convention (secret surveillance in the context of criminal proceedings) No. Application no. Date of introduction Applicant’s name Year of birth   Representative’s name and location Type of secret surveillance Date of the surveillance authorisation Name of the issuing authority Other relevant information Specific defects Other complaints under  well-established case-law Amount awarded for pecuniary and non‑pecuniary damage and costs and expenses per applicant (in euros)[1]     20202/15 08/04/2015 Sergey Vladimirovich IVANOV Dorozhkina Yekaterina Aleksandrovna Sarov interception of telephone communications 20/08/2012, Nizhniy Novgorod Regional Court the courts did not authorise the interception of the applicant’s conversations, the authorisation was given in respect of another person; the applicant raised the relevant complaint in the course of the criminal proceedings against him. He was convicted on 16/07/2014 by the Arzamas Town Court of the Nizhniy Novgorod Region. His conviction was upheld on appeal on 13/10/2014 by the Nizhniy Novgorod Regional Court.   the courts did not verify the existence of a “reasonable suspicion” and did not apply the “necessity in a democratic society” test Art. 13 - lack of any effective remedy in domestic law in respect of the complaint under Art. 8 7,500     56469/15 07/11/2015 Lyudmila Aleksandrovna NOVOZHILOVA Glashev Akhmed Alabiyevich Moscow interception of telephone communications 18/10/2011, Deputy Head of the Regional Department of the Interior The data obtained in the course of secret surveillance operation was used in the criminal proceedings against the applicant on the charge of disclosure of tax secrets. The final decision on the matter (conviction) was taken by the Oktyabrskiy District Court of Arkhangelsk on 20/05/2015   the use of “urgent procedure” that does not provide sufficient safeguards against arbitrariness (“quality of law”)   7,500     56631/15 13/11/2015 Mansur Kakhimovich ZHEKSIMBAYEV     interception of telephone communications 26/04/2011, Orenburg Regional Court The applicant, an attorney, was charged with accessory to bribery (on 23/05/2011 he allegedly offered a bribe to an investigator on behalf of his client, a defendant in a criminal case). The applicant raised the relevant complaint in the course of the criminal proceedings against him. On 02/02/2015 he was found guilty as charged by the Ilekskiy District Court of the Orenburg Region. His conviction was upheld on appeal by the Orenburg Regional Court on 26/06/2016.   the courts did not verify the existence of a “reasonable suspicion” and did not apply the “necessity in a democratic society” test, the use of “surveillance” or “operative experiment” measures not accompanied by sufficient safeguards against arbitrariness (“quality of law”)   7,500     25803/16 04/05/2016 Garegin Akopovich TOPCHYAN Prilepskiy Valeriy Ivanovich Moscow operative experiment, collection of data from technical channels of communication 16/02/2013, Deputy Head of the Regional Department of the Interior The applicant was an attorney. Secret surveillance preceded the criminal proceedings against him on the charges of accessory to bribery. He was found guilty as charged and sentenced to 7 years’ imprisonment and a fine. The final decision on the matter was taken by the Moscow City Court on 09/11/2015   the applicant was refused access to the decisions authorising secret surveillance measures against him/her, the use of “urgent procedure” that does not provide sufficient safeguards against arbitrariness (“quality of law”)   7,500     36818/17 12/05/2017 Ruslan Sergeyevich PYLAYEV Boychenko Yegor Leonidovych Strasbourg interception of telephone communications no authorisation The telephone communications were recorded by witness B., a highranking police officer at the time, who subsequently handed over the recordings to the investigator, including the telephone conversation with the applicant on 03/10/2014; the applicant raised the complaint in the course of the criminal proceedings against him which ended on 16/02/2017 with the appeal judgment of the Primorye Regional Court.   the recordings were made in the absence of a judicial authorisation and had no basis in domestic law   The finding of a violation constitutes sufficient just satisfaction     11430/18 01/03/2018 Mikhail Yevgenyevich PUGACHEV     interception of electronic communications, interception of telephone communications, interception of postal communications, surveillance (“наблюдение”) Unknown The applicant, a practising attorney, alleges that he was subjected to secret surveillance and that the law enforcement authorities refused to disclose the relevant information to him. The final decision on the matter was taken by the Supreme Court of the Russian Federation on 11/01/2018. the applicant was refused access to the decisions authorising secret surveillance measures against him/her, the use of “surveillance” or “operative experiment” measures not accompanied by sufficient safeguards against arbitrariness (“quality of law”)   The finding of a violation constitutes sufficient just satisfaction     19738/18 20/04/2018 Albert Mudarisovich BAYAZITOV Kolosovskiy Sergey Vyacheslavovich Yekaterinburg interception of telephone communications the date of the authorisation of the surveillance measure by the Sverdlovsk Regional Court was not disclosed to the applicant On 05/09/2015 the secret service intercepted telephone communication between the applicant and his lawyer. Its transcript was subsequently admitted as evidence. The applicant was found guilty of public incitement to religious hatred or hostility. The final decision on the matter was taken by the Sverdlovsk Regional Court on 22/12/2017       lack of safeguards in case of accidental interception of a suspect’s communications with counsel (“quality of law”), the applicant was refused access to the decisions authorising secret surveillance measures against him/her Art. 13 - lack of any effective remedy in domestic law in respect of the complaint under Art. 8 7,500     42165/19 12/07/2019 Vladimir Vladimirovich KISELEV Kashirin Roman Mikhaylovich Pskov interception of telephone communications 01/03/2018, Pskov Regional Court On 13/03/2018 the secret surveillance files were de-classified and on 14/03/2018 the investigative committee instituted criminal proceedings against the applicant, a police officer at the relevant time, on the charge of bribe taking. According to the applicant, he learnt about interception of his telephone communications in March 2019. On 12/03/2019 he appealed against the decision of 01/03/2018. On 01/07/2019 the Regional Court dismissed the complaint.   the courts did not verify the existence of a “reasonable suspicion” and did not apply the “necessity in a democratic society” test Art. 13 - lack of any effective remedy in domestic law in respect of the complaint under Art. 8 7,500     64654/19 04/12/2019 Gera Yuryevna GUZHVA Kiryanov Aleksandr Vladimirovich Taganrog interception of telephone communications 25/08/2017, Oktyabrskiy District Court of the Rostov Region The applicant’s request to provide access to the judicial decision authorising interception of her telephone communications lodged on 06/09/2019 was dismissed by the investigator on 30/10/2019   the applicant was refused access to the decisions authorising secret surveillance measures against him/her Art. 13 - lack of any effective remedy in domestic law in respect of the complaint under Art. 8 7,050   65280/19 04/12/2019 Marks-Agness Vladimirovna KALASHNIK-SAVELCHENKO Yastrebova Natalya Viktorovna Rostov-on-Don interception of telephone communications 22/08/2017 Oktyabrskiy District Court of Rostov Region the applicant raised the issue of interception in the criminal proceedings against her; on 03/06/2020 she was found guilty of illegal drug dealings by the Novocherkassk Town Court of the Rostov Region; on 01/09/2020 her conviction was upheld on appeal by the Rostov Regional Court. The applicant learned about the interception of his telephone communication in October 2019 when studying the casefile in her criminal case the applicant was refused access to the decisions authorising secret surveillance measures against him/her Art. 3 - inadequate conditions of detention during transport - van; 26/10/2018-20/01/2020; single-occupancy cubicle, 0.3 sq. m of personal space, ceiling height inside the van – 163 cm, lack of fresh air, travel time ranging from 1h30 to 2h30 on each occasion (introduction date - 01/02/2020),    Art. 13 - lack of any effective remedy in domestic law in respect of inadequate conditions of detention during transport and in respect of the complaint under Art. 8,    Art. 5 (4) - excessive length of judicial review of detention - Novocherkassk Town Court detention order of 29/07/2019, appeal decision on 26/09/2019           6,250   5495/20 31/12/2019 Vyacheslav Alekseyevich TSYGANOK Kiryanov Aleksandr Vladimirovich Taganrog interception of telephone communications 15/05/2019, Taganrog Town Court On 07/11/2019 the Town Court declassified the decision of 15/05/2019. On 12/10/2019 the transport police opened criminal investigation against the applicant on the charges of fraud. On 12/11/2019 the transport police declassified the data collected during interception of the applicant’s telephone communications the courts did not verify the existence of a “reasonable suspicion” and did not apply the “necessity in a democratic society” test Art. 13 - lack of any effective remedy in domestic law in respect of the complaint under Art. 8 7,500   13810/20 04/03/2020 Violetta Alekseyevna VYDYSH Sukhareva Tatyana Viktorovna Moscow interception of telephone communications 20/06/2018, 05/07/2018, Rostov-on-Don Garrison Military Court On 21/06/2018 the investigative committee instituted criminal proceedings against the applicant’s husband, lieutenant colonel of the military medical service, on the charges of fraud. On 06/09/2019 the applicant learned of the interception of her telephone communications   the use of “surveillance” or “operative experiment” measures not accompanied by sufficient safeguards against arbitrariness (“quality of law”) Art. 13 - lack of any effective remedy in domestic law in respect of the complaint under Art. 8 7,500   927/22 17/12/2021 Yuriy Viktorovich GUKOV Kiryanov Aleksandr Vladimirovich Taganrog interception of telephone communications 06/07/2021, 30/07/2021, 26/05/2021, 08/06/2021, 14/07/2021, 20/07/2021, 19/08/2021, 10/08/2021 by the Leninskiy District Court of Rostov-on-Don   the applicant was refused access to the decisions authorising secret surveillance measures against him/her, the courts did not verify the existence of a “reasonable suspicion” and did not apply the “necessity in a democratic society” test Art. 6 (1) - lack of impartiality of the tribunal in view of the absence of a prosecuting party in administrative-offence proceedings - in respect of administrative proceedings in the applicant’s respect; conviction under Article 19.3 § 1 of the CAO, Rostov Regional Court 08/11/2021 (appeal decision),   Art. 13 - lack of any effective remedy in domestic law in respect of the complaint under Art. 8 8,500   [1] Plus any tax that may be chargeable to the applicants.