ANAYEV A OSTATNÍ proti Rusku

THIRD SECTION

CASE OF ANAYEV AND OTHERS v. RUSSIA

(Applications nos. 60786/14 and 2 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 Anayev 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 the secret surveillance in the context of criminal proceedings. In applications nos. 56428/17 and 56484/17 the applicants also raised other complaints under the provisions of the Convention.

THE LAW

1. 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.

2. ALLEGED VIOLATION OF ARTICLE 8 of the Convention

6. The applicants complained about the covert surveillance measures conducted in the absence of a judicial authorisation. Mr Rusanov and Mr Chistov (applications nos. 56428/17 and 56484/17) also complained about ensuing interception of their telephone communications authorised by a regional court. The applicants relied, expressly or in substance, on Article 8 of the Convention, which reads, in so far as relevant, 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 covert surveillance measures, including video and audio recording of private communications, amount to an interference with the right to respect for private life, within the meaning of Article 8 § 1 of the Convention, and that such interference is to be “in accordance with the law” and “necessary in a democratic society”, for one of the purposes enumerated in Article 8 § 2 (see, for example, Bykov v. Russia [GC], no. 4378/02, § 72, 10 March 2009).

8. In Bykov, the Court has concluded that the Russian legislation which permitted the police to conduct secret surveillance, including interception and recording of private communication, without judicial authorisation fell short of the standards of the quality of law set out in Article 8 of the Convention. In the Court’s view, leaving the secret surveillance operation to the sole discretion of law enforcement authorities, the domestic law failed to provide adequate safeguards against various possible abuses (ibid., §§ 73-83).

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 in the present case. It considers that in the instant case the covert surveillance operations, including video and audio 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.

10. Accordingly, these complaints are therefore admissible and disclose a breach of Article 8 § 1 of the Convention.

11. In view of the above findings, the Court does not consider it necessary to examine separately the remainder of the applicants’ complaints raised under Article 8 of the Convention (applications nos. 56428/17 and 56484/17).

3. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

12. In applications nos. 56428/17 and 56484/17 the 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 findings in Konstantin Moskalev v. Russia (no. 59589/10, §§ 25-36, 7 November 2017, concerning lack of an effective remedy in respect of the complaint about covert surveillance).

4. APPLICATION OF ARTICLE 41 OF THE CONVENTION

13. 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.”

14. 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 v. Russia, nos. 29431/05 and 2 others, 7 November 2017, Dudchenko v. Russia, no. 37717/05, 7 November 2017, Moskalev v. Russia, no. 44045/05, 7 November 2017 and Konstantin Moskalev, cited above), the Court considers it reasonable to award the sums indicated in the appended table.

15. 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,

1. Decides to join the applications;
2. Declares the complaints about the covert surveillance measures conducted in the absence of a judicial authorisation, as well as other complaints raised under the well-established case-law of the Court in applications nos. 56428/17 and 56484/17 (see appended table), admissible and finds that it is not necessary to examine separately the complaints raised by Mr Rusanov and Mr Chistov (applications nos. 56428/17 and 56484/17) about the interception of their telephone communications authorised by the court;
3. Holds that these applications disclose a breach of Article 8 of the Convention concerning the secret surveillance in the context of criminal proceedings;
4. Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see the appended table);
5. 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)

[1] Plus any tax that may be chargeable to the applicants.