CASE OF PETLIN AND YAKUPOV v. RUSSIA
(Applications nos. 14829/12 and 20420/12 – see appended list)
JUDGMENTJudgment The statement given by the Judge on the grounds of a decree or order - CPC 2(9). It contains a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision - Order 20 Rule 4(2). Section 354 of CrPC requires that every judgment shall contain points for determination, the decision thereon and the reasons for the decision.
Indian Supreme Court Decisions > Law declared by Supreme Court to be binding on all courts (Art 141 Indian Constitution) Civil and judicial authorities to act in aid of the Supreme Court (Art 144)
Supreme Court Network
On Judiciary – Portal > Denning: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give Judgment. And in their judgments, you will find passages, which are worthy to rank with the greatest literature….”
Law Points on Judgment Writing > The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges (State Bank of India and Another Vs Ajay Kumar Sood SC 2022)
STRASBOURG
27 October 2022
This judgment is final but it may be subject to editorial revision.
In the case of Petlin and Yakupov 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.
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 of the secret surveillance in the context of criminal proceedings. They relied, expressly or in substance, on Article 8 § 1 of the Convention, which reads as follows:
Article 8 § 1
“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 crimeCrime A positive or negative act in violation of penal law; an offense against the state classified either as a felony or misdemeanor., 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). 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 this requirement has led the Court to conclude to a violation of 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).
8. 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 meritsMerits Strict legal rights of the parties; a decision “on the merits” is one that reaches the right(s) of a party as distinguished from a disposition of the case on a ground not reaching the rights raised in the action; for example, in a criminal case double jeopardy does not apply if charges are nolle prossed before trial commences, and in a civil action res judicata does not apply if a previous action was dismissed on a preliminary motion raising a technicality such as improper service of process. of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case (as set out in the appended table) the 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.
9. These complaints are therefore admissible and disclose a breach of Article 8 § 1 of the Convention.
OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW
10. Mr Petlin (application no. 14829/12) submitted a complaint under Article 13 of the Convention, given the relevant well-established case-law of the Court. This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that the complaint also discloses a violation of the Convention in the light of its well-established case-law (see, among other authorities, Konstantin Moskalev v. Russia, no. 59589/10, 7 November 2017, concerning the lack of an effective remedy in respect of the complaints about covert surveillance).
OTHER COMPLAINTS
11. Mr Yakupov (application no. 20420/12) also complained under Article 8 of the Convention about the searches on his premises. Having regard to the facts of the case, the submissions of the parties, and its findings above (see paragraphs 7 and 8 above), the Court considers that it has examined the main legal question raised in the present application. It thus considers that this complaint is admissible but that there is no need to give a separate ruling on its merits (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no.47848/08, § 156, ECHR 2014).
APPLICATION OF ARTICLE 41 OF THE CONVENTION
12. 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.”
13. Regard being had to the documents in its possession and to its case‑law (see, in particular, Zubkov and Others, cited above, Dudchenko, cited above, and Konstantin Moskalev, cited above), the Court considers it reasonable to award the sums indicated in the appended table and rejects the remainder of the applicants’ claims for just satisfaction.
14. 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 § 1 of the Convention concerning the secret surveillance in the context of the criminal proceedings;
- Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court in application no. 14829/12 (see appended table);
- Holds that there is no need to examine the merits of the remaining complaint under Article 8 of the Convention brought by Mr Yakupov (application no. 20420/12);
- 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;
7-Dismisses the remainder of the applicants’ claims for just satisfaction.
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)
| Application no.Date of introduction | Applicant’s nameYear of birth | Representative’s name and location | Type of secret surveillance | Date of the surveillance authorisationName of the issuing authority | Specific defects | Other complaints under well-established case-law | Amount awarded for pecuniary and non-pecuniary damage and costsCosts Subject to any written law, costs are at the discretion of the Court, and the Court has the power to determine all issues relating to the costs of or incidental to all proceedings, including by whom and to what extent the costs are to be paid, at any stage of the proceedings or after the conclusion of the proceedings. Generally “Costs” includes charges, disbursements, expenses, fees, and remuneration. Costs in any matter are payable from the date of the order of the Court unless the parties otherwise agree. The costs of a third-party funding contract are not recoverable as part of the costs of, or costs. and expenses per applicant (in euros)[1] |
| 14829/1227/02/2012 | Maksim Anatolyevich PETLIN1973 | Sergey Vyacheslavovich KolosovskiyYekaterinburg | interception of telephone communications | 16/11/2010 Sverdlovsk Regional Court | 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 to complain about the secret surveillance. | 7,500 |
| 20420/1212/03/2012 | Vildar Khamitovich YAKUPOV1979 | Raul Amurovich KhashimovChelyabinsk | interception of telephone communications | 14/09/2009 Chelyabinsk Regional Court | the use of “surveillance” or “operative experiment” measures not accompanied by sufficient safeguards against arbitrariness (“quality of law”) | 7,650 |
In the case of Tretyakov and Others v. Russia-27 October 2022
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).