51127/13;77354/13;14042/14;3044/16

THIRD SECTION CASE OF TRETYAKOV AND OTHERS v. RUSSIA (Applications nos. 51127/13 and 3 others – see appended list)             JUDGMENT   STRASBOURG 27 October 2022   This judgment is final but it may be subject to editorial revision. In the case of Tretyakov and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of:  Darian Pavli, President,  Andreas Zünd,  Frédéric Krenc, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 6 October 2022, 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 secret surveillance in the context of criminal proceedings against them. 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. ALLEGED VIOLATION OF ARTICLE 8 § 1 of the Convention 6.  The applicants complained that judicial orders authorising interception of their telephone communications had not been disclosed to them in contravention of Article 8 of the Convention, which, in so far as follows, reads as follows: “1.  Everyone has the right to respect for his private ... life ... 2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 7.  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). 8.  The Court has already established, in a number of earlier cases, that 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 v. Russia, nos. 29431/05 and 2 others, §§ 122-32, 7 November 2017). 9.  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 dismisses the Government’s objections as to the applicants’ failure to comply with the exhaustion and six‑month requirements (see, for similar reasoning, Zubkov and Others, cited above, §§ 85-111) and considers that in the instant case there is nothing to suggest that the domestic courts which authorised the covert surveillance against the applicant verified whether there was a “reasonable suspicion” against him or applied the “necessity in a democratic society” and “proportionality” test. Moreover, 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 in the light of the relevant principles of Article 8 of the Convention. 10.  These complaints are therefore admissible and disclose a breach of Article 8 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 11.  Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 12.  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 v. Russia, no. 37717/05, 7 November 2017; Moskalev v. Russia, no. 44045/05, 7 November 2017; and Konstantin Moskalev v. Russia, no. 59589/10, 7 November 2017), the Court considers it reasonable to award the sums indicated in the appended table. 13.  The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Declares the applications admissible; Holds that these applications disclose a breach of Article 8 of the Convention related to the secret surveillance in the context of criminal proceedings; Holds (a)  that the respondent State is to pay the 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 27 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Viktoriya Maradudina Darian Pavli  Acting Deputy Registrar President   APPENDIX List of applications raising complaints under Article 8 § 1 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 Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros)[1]     51127/13 30/07/2013 Maksim Pavlovich TRETYAKOV     interception of telephone communications 23/05/2008, Moscow Regional Court applicant not given a copy of the surveillance authorisation   On 25/02/2013 The Supreme Court of the Russian Federation upheld the applicant’s conviction on appeal   The applicant was an attorney charged with accessory to bribery the applicant was refused access to the decisions authorising secret surveillance measures against him/her 7,500     77354/13 20/11/2013 Alesya Ivanovna MEDVEDEVA Sergey Grigoryevich Pinchuk Tyumen interception of telephone communications 30/06/2010, 04/07/2010, 20/07/2010, 10/08/2010, 20/07/2010, 29/09/2010, decisions of Tsentralnyy District Court of Tyumen   21/07/2010, decision of Tyumen Regional Court The applicant was found guilty of drug dealing. The final decision on the matter was taken by the Tyumen Regional Court on 18/06/2013 the applicant was refused access to the decisions authorising secret surveillance measures against him/her 7,500     14042/14 07/02/2014 Aleksandr Nikolayevich DOROSHENKO Kozodayev Vladimir Nikolayevich Petrozavodsk interception of telephone communications no date provided   Petrozavodskiy Town Court of the Republic of Karelia The applicant was found guilty of drug dealing. The final decision on the matter was taken by the Supreme Court of the Karelia Republic on 29/08/2013 the applicant was refused access to the decisions authorising secret surveillance measures against him/her 7,500     3044/16 01/12/2015 Yegor Grigoryevich STRASHNENKO     interception of telephone communications Not known The applicant was found guilty of multiple counts of theft. The final decision on the matter was taken by the Sverdlovsk Regional Court on 17/09/2015. the applicant was refused access to the decisions authorising secret surveillance measures against him/her 7,500   [1] Plus any tax that may be chargeable to the applicants.