FIRST SECTION

CASE OF MODESTOU v. GREECE

( Application no. 51693/13 )

JUDGMENT

(Extracts)

STRASBOURG

16 March 2017

FINAL

18/09/2017

This judgment became final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Modestou v. Greece ,

The European Court of Human Rights ( First Section ), sitting as a Chamber composed of:

Ledi Bianku, P r e sident, Mirjana Lazarova Trajkovska,

Linos-Alexandre Sicilianos, Aleš Pejchal, Robert Spano, Pauliine Koskelo, Tim Eicke, judges , and Renata Degener, Deputy Section Registrar ,

Having deliberated in private on 21 February 2017 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 51693/13) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Cypriot national, Mr Mamas Modestou (“the applicant”), on 6 August 2013.

2 . The applicant was represented by Mr H. Mylonas, a lawyer practising in Athens. The Greek Government (“the Government”) were represented by their Agent ’ s Delegate, Mr K. Georghiadis, Adviser, State Legal Counsel. The Government of Cyprus did not avail themselves of their right to intervene in the proceedings (Article 36 § 1 of the Convention).

3 . The applicant alleged that there had been a violation of A rticle 8 of the Convention, particularly on account of the conditions in which a search had been conducted at his private home and business premises as part of a preliminary police investigation .

4 . On 22 February 2016 notice of the application was given to the Government .

FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1976 and lives in Athens .

6 . The applicant is a businessman and chairman of a public limited company .

7 . On 23 September 2010 the public prosecutor at the Athens Court of Appeal ordered the Attica Po lice Department to carry out searches at fifteen residential and business premises in various locations in Athens and the Attica region, including the applicant ’ s address , in the context of a preliminary police investigation being c onducted in respect of S.G. and I.G. and other unnamed persons . The applicant was not referred to by name as being suspected of involvement in the offences in question . The prosecutor ’ s warrant was worded as follows:

“ On the basis of decision n o. 2940/29-7-2010 of the prosecutor at the Court of Cassation, we are conducting an investigation to verify whether criminal offences have been committed, in particular the setting up of a criminal organisation ( A rticle 187 of the Criminal C ode) by S.G. and I.G. , and by other persons connected with them and acting in co llaboration with them .

In view of the material gathered to date and in order to avoid the loss of decisive evidence, we hereby order search es , i n application of A rticles 253-259 of the Code of Criminal Procedure , at the residential and professional premises located in the following streets :

28-30 rue Meletopoulou, Palaio Psychiko;

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In addition, should you consider it necessary, carry out body searches of the person s present in these homes and offices .

In any event, s eize any obje c t o r document found there in which, in your opinion, has a link with the case under consideration, and draw up the relevant reports for s ubmission to us as rapidly as possible ... ”

8 . On 24 September 2010 a police officer, accompanied by a deputy prosecutor, went to the applicant ’ s home. Since the applicant was not at home the police officer and the prosecutor contacted a locksmith, who opened the entrance door. In the presence of a witness ( a neighbour, a national of the Netherlands ), they conducted a search and seized numerous items ( two computers and hundreds of documents ). The search lasted for twelve and a half hours. A 41-page list of items and documents was drawn up .

9 . In May 2012, on completion of the preliminary police investigation, the public prosecutor at the Athens Court of Appeal instituted proceedings against a number of individuals, including the applicant, for involvement in a criminal organisation .

10 . On 8 November 2012 the applicant applied to the Indictment Division at the Athens Court of Appeal to have the search declared null and void, the seizure order lifted and the seized items returned.

11 . On 13 February 2013 the indictment division dismissed his application. The main issue examine d by it was whether a search and seizure operation could be carried out in the course of a preliminary police investigation.

12 . It noted that the preliminary police investigation ( προκαταρκτική εξέταση ) and the subsequent pre-trial investigation ( προανάκριση ) pursued a common goal, that of establishing the truth. T he only difference between them was that the second proc edure concerned an “accused”, while the first proc edure concerned a “suspect”, who, in the indictment division ’ s finding, nonetheless enjoyed all the rights granted to an accused . It held that this difference was not such as to deprive the bodies responsible for investigating a case of an important tool for un covering decisive items of evidence, otherwise there would be a serious risk of a finding that there was no case to answer without the authorities having been able to exhaust all the investigatory options available to them . Referring to a legal opinion by P rofes sors D. Tsatsos, A. Papadima and K. Chrysogonos (publi shed in the Poiniki Dikaiosyni magazine, no. 7/2003, pp. 813 et s eq. ), the indictment division held that the preliminary police investigation was judicial and not administrative in nature and that it was one stage in the criminal procedure . The indictment division further noted that the preliminary police investigation was conducted in accordance with the procedure for a pre-trial investigation , a spe cif i c reference being made to A rticles 240 and 241 of the Code of Criminal Procedure (C C P). In the indictment division ’ s view, this meant that in deciding whether to bring a prosecution the public prosecutor ’ s office had to use all the means at its disposal to gather evidence , in line with A rticle 178 of the C C P and the procedure applicable to the pre-trial investigation, with the exception of evidence that was incompatible with the nature of a pre liminary police investigation ( such as, for example, the memorandum of defence as a suspect and issu ing an arrest warrant ).

13 . The indictment division held that A rticle 256 of the CCP, pr oviding for the right of the occupant of premises being searched to be present, did not impose an obligation on the person conducting the search to await the occupant or invite him or her to be present, and that, should the occupant be absent, the presence of a neighbour was sufficient .

14 . With regard to the authorities ’ refusal to re turn the seized objects, the indictment division noted that a considerable amount of evidence had been seized during the searches of the applicant ’ s home and also at the residential premises of the other individuals concerned, and that this evidence provided sufficient proof of the existence of a criminal organisation involving persons who had committed serious offences, most of them crimes, in respect of which pro secution s had been brought. It pointed out that any subsequent proceedings would have been impossible if th is evidence had not been gathered, and that, given that th e se items were particularly decisive and crucial for the investigation of the case, they ought to remain in the case file.

15 . On 12 March 2013 the applicant invit ed the public prosecutor at the Court of C assation to lodge an appeal against the indictment division ’ s decision. On 13 March 2013 the prosecutor dismissed that request. He held that the conditions for lodging an appeal on points of law had not been met, in that the indictment division had provided comprehensive reasoning for the contested decision and that, since no further investigative acts had been conducted , no decision by the indictment division at the court of appeal was necessary in order to approve them.

II. RELEVANT DOMESTIC LAW AND PRACTICE

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19 . In judgment no. 1328/2003 of 16 May 2003, the Court of Cassation held that it was not permitted to conduct a search during the preliminary police investigation so as to enable the prosecutor to decide whether or not a pro secution should be instituted and that, where such a search had been carried out, it was null and void. It stated that the preliminary police investigation was not one of the cases for which, under Article 251 of the CCP , a search was a statutory requirement and that there existed no provision to the effect that a search was permitted during the preliminary police investigation . It added that, given that a search infringed individual rights, it had to be accepted that it was not authorised at this stage of the procedure. According to the Court of Cassation , a different approach would run counter to the principle of special law, which required that procedural infringements of individual rights, such as the inviolabilit y of the hom e and of private and family life, and of the accused ’ s rights of defence and the procedures for protecting them, were the object of express and specific measures .

20 . On 5 February 2009 the pro se cu tor at the Court of Cassation sent a circular to the prosecutor ’ s offices at all the courts of appeal and all the first-instance courts, referring, in particular, to searches carried out during preliminary police investigations. The pro secutor reviewed the relevant legislative provisions and, in particular, Article 31 of the Criminal Code and certain other articles of the Code of Criminal Procedure. He emphasised that it was clear from those provisions that the preliminary police investigation and the pre-trial investigation were similar in terms of their aim and the manner of proceeding. On the basis of Law n o. 3346/2005 and its explanatory report, he specified that, for the purposes of the proper conduct of the preliminary police investigation, the “suspect” enjoyed the same rights as the accused and that the judicial investigation ought to be speeded up i n order to avoid repetition of investigative measures, especially where an in-depth assessment of the accusations had been conducted at the stage of the preliminary police investigation. There was no longer any doubt that the preliminary police investigation was judicial rather than administrative in nature and represented one step in the criminal proce e d ings .

21 . The prosecutor added that following the legislative reform, mere suppositions would henceforth be insufficient in order to bring a criminal pro secution in criminal cases, but that instead prosecutions were to be based on sufficient evidence , gathered in the course of the preliminary police investigation, a step which had become compulsory. As there was a direct reference to A rticles 240 and 241 of the Code of Criminal P roc e dure, th e preliminary police investigation was to be carried out in accordance with the procedure applicable to the judicial pre-trial investigation and, in particular, using the me ans stipulated in A rticle 178 , Article 251 et s eq . of the Code of Criminal Procedure, thus including a search .

22 . The argument put forward under the legislative approach prior to the reform, namely that a search could not be carried out during the preliminary police investigation since it amounted to an interference with the individual ’ s private life, could no longer be sustained. Having regard to the fact that, following Law no. 3346/2005, the “suspect” was authorised to have access to the case file at such an early stage and th us to refute all accusations against him or her before they were made, it would be contrary to the principle of search ing for the truth not to allow the person in charge of the preliminary police investigation to use every possible investigative measure .

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LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

25 . The applicant alleged that the search of his private and professional premises in the context of a preliminary police investigation had given rise to a violation of Article 8 of the Convention, which provides :

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

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.”

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B. Merits

1. The parties ’ submissions

27 . The applicant submitted that the authorities ’ alleged disregard in the present case for the domestic l egislation, the content of the search warrant and the manner in which it had been conducted had entailed nine violations of Article 8 of the Convention, which he broke down as follows :

– non-compliance with the domestic legislation, which, he submitted, did not permit a search during the preliminary police investigation ;

– a failure to comply with A rticles 253A and 256 of the C C P;

– the open-ended nature of the search warrant, which was not individualised but concerned 15 different addresses, and the failure to indicate the purpose of the search ;

– absence of a reference to criminal charges and the reasons for issuing the warrant ;

– the non-specific nature of the purpose of the search ;

– the vagueness of the wording of the warrant, thus providing the police officers with licence to seize – as they had in fact done – “anything there in” from his office ;

– absence of witnesses with legal knowledge during the search ;

– a failure to comply with the principle of proportionality, given the consequences of the search on the confidentiality of professional data ;

– a refusal by the authorities to provide reasons for retaining the seized items .

28 . The Government allege d , firstly, that the search in question had not constitute d an interference by the authorities with the applicant ’ s right to respect for his priva te life . It could not, in their view, be argued that an investigative measure such as the contested search and seizure in respect of the applicant – whose “accused” status had still to be ascertained – was not permitted during the preliminary police in vestigation . The Government indi cated that since the entry into force of Act no. 3346/2005 ... , i t was no w possible to carry out all sorts of investigative measures , such as a search or a seizure, during a preliminary police investigation, with the exception of acts which were incompatible with the nature of that investigation, for example taking the suspect ’ s memorandum of defence .

2. The Court ’ s assessment

( a) Whether there was an interference

( b) Whether the interference was justified

i. In accordance with the law

30 . The applicant submitted that the indictment division had a ccepted that a search could be carried out during the preliminary police investigation , but that it had not based this finding on any legislative provision or any judicial decision. He further indicated that the indictment division had referred only to the legal opinion of three university professors but had distorted its content, since, in his view, the opinion in question specifically concluded that searches and seizures were not permitted in the context of a preliminary police investigation . He added that the indictment division had completely ignored Court of Cassation judgments n os. 1328/2003 ... and 1904/2010 (unpublished) , which, he alleged, had reached the same conclusion as the above-cited opinion. Lastly, he appended to his observations three legal commentaries by noted jurists, confirming the argument that searches and seizures were not authorised dur ing a preliminary police investigation .

31 . The Government argued that since the reforms introduced by Laws n os. 3160/2003 and 3346/2005, the preliminary police investigation was now part of criminal procedure and w as judicial rather than administrative in nature . They also relied on decision n o. 1575/2012 of the Court of Cassation ( see paragraphs 19-22 above ). More specifically, they argued that the purpose of such police investigation s was no longer to uncover certain items which would indicate th at an offence had possibly been committed, but to uncover sufficient evidence so that a pro secution could be instigated. They added that, since th e relevant reforms, suspect s enjoyed all the same rights as an accused and their statements constitu ted evidence that was taken into consideration by the courts. Su spect s were authorised to take cognisance of all the material in the case file at an early stage and to r e fute the accusations even before they had been formally set out. Investigative acts such as a search or seizure were among those which made it possible to verify whether criminal acts had been committed by specific persons. The Government argue d that if such investigative acts were to be hindered , crime investigation s would be ineffective. Lastly, they considered that search and seizure operations were urgent in nature . In their view, if it seemed during a preliminary police investigation that evidence was likely to disappear, the investigators, including the pro secutor, were entitled to carry out a search in order to seize this evidence in good time.

32 . The Court reiterates that in a sphere covered by written law, the “law” is the enactment in force as the competent courts have interpreted it ( see Leyla Şahin v. Turkey [GC], n o. 44774/98, § 88, ECHR 2005-XI).

33 . The Court notes firstly that, under the domestic law and following the successive amendments to Article 31 §§ 1 and 2 of the C C P, the prosecutor at the criminal court may order a preliminary police investigation , to be carried out in accordance with A rticles 240 and 241 of the C C P , governing judicial investigation s . In particular, Article 31 § 2 provides that the individual targeted by the investigation is to be summoned to provide explanations within forty-eight hours and is to be heard without being placed under oath; he or she has the right to be accompanied by a lawyer, to refuse – partially or fully – to provide explanations and to have a forty-eight - hour period to do so, a time-limit that may be extended; he or she is entitled to request a copy of the file, to propose witnesses and to submit evidence in order to refute the accusations against him or her . In addition, under Article 243 § 2 of the C C P on the pre-trial investigation , where a delay is likely to give rise to an immediate danger, all the investigators are required to carry out the necessary acts to verify whether the act was committed and to identify its perpetrator, even in the absence of a prior decision by the pro secutor .

34 . The Cour t further note s that the scholarly a rticle mentioned by the applicant , and to which the indictment division also referred, concluded that there was no provision for home searches in the context of the preliminary police investigation , and that, if by chance any such search w ere to be carried out, it had to be regarded as an unlawful investigative measure and as invalid in procedural terms . Judgment no. 1328/2003, cit ed by the applicant in support of his arguments, contained a similar argument. However, the Court notes that both the scholarly article published in 2003 and judgment no. 1328/2003 preceded the legislative reforms of 2003 and 2005, which, as the Government have emphasised, changed both the purpose of the preliminary police investigation and the procedure governing it. Equally, on 5 February 2009, and thus before the events in the present case, the prosecutor at the Court of Cassation sent a circular to the prosecutors ’ offices at all courts of appeal and first-instance courts, specifying the procedure to be followed with regard to searches conducted in the context of preliminary police investigation s . The pro se cu tor analysed the new leg islation in force and gave specific indications on the manner in which searches were to be conducted at this stage of the procedure ( see paragraph 19 above ).

35 . The Court also notes that decision n o. 1575/2012 of 12 December 2012 by the Court of Cassation , sitting in private, essentially reproduced this analysis by the pro se c utor , and that the indictment division ’ s decision in ruling on the present applicant ’ s case repeated, in practically identical terms, the reasoning in decision n o. 1575/2012.

36 . Thus, the Court notes that in the decision i n question the Court of Cassation confirmed that, following the legislative reforms of 2003, 2005 and 2010 and subsequent to the entry into force of Law no. 4055/2012, a preliminary police investigation had become compulsory in criminal matters and for the purposes of bringing a prosecution, that this procedure had been amended and was c onducted, like the judicial investigation , before criminal proceedings were instigated, pursuant to A rticles 240 and 241 of the C C P. According to the Court of Cassation , th e preliminary police investigation was a fundamental stage in the investigation proce dure , during which all forms of evidence provided for by Article 178 of the C C P were used , and it was intended to establish whether or not the conditions for instituting proceedings had been met. Again according to the Court of Cassation , given the operational methods and the aim pursued, there were now no longer any significant differences between the preliminary police investigation and the pre-trial investigation . It follows that this interpretation was clear at the time that the indictment division ruled on the applicant ’ s request .

37 . In view of the foregoing, the Court considers that the interference was “in accordance with the law”.

38 . That being stated, the manner in which those provisions were applied in the present case may be of relevance in the Court ’ s assessment of the necessity of the measure.

ii. Legitimate aim

39 . The Court observes that the search was carried out in the context of a preliminary police investigation , before the criminal proceedings against the applicant were opened. It was intended to find clues and evidence of participation in a criminal organisation operating in the area of money laundering . Clearly, it pursued the prevention of disorder and crime , both legitimate aims as set out in Article 8 § 2 .

iii. Necessary in a democratic society

( α) The parties ’ submissions

40 . The applicant referred to the nine separate violations of Article 8 allegedly sustained by him ( see paragraph 27 above ). He relied on the judgments delivered by the Court in the area of searches and submitted that none of the criteria laid down by the Court in its case-law for ensuring that a search was compatible with the requirements of Article 8 had been met in his case. He added that the Government had s ubmitted no argument s to c ontest eight of the nine violations i n question.

41 . The Government considered that the objects found and seized had had a direct link with the crimes being investigated, and indi cated that the impugned search had been directly connected to the needs of the preliminary police investigation and had resulted in a criminal pro secution being brought against the applicant for participating in a criminal organisation . They submitted that the search had been conducted lawfully, in the presence of a witness – the applicant ’ s neighbour –, and that, having regard to the urgency of the situation, it had not been necessary for the authorities to await the applicant ’ s return. T he search warrant prepared by the prosecutor had been sufficiently specific and individualised. W ith regard to the offences , reference had been made to Article 187 ( criminal organisation) of the Criminal C ode and the provisions on searches ( A rticles 253 et seq. of the C C P) and that the authorities had been invited to seize any object which , in their view, was related to the case.

( β) The Court ’ s assessment

A pplicable principles

42 . The Court reiterate s that, as regards searches of premises and seizures in particular, it has consistently held that the Contracting States may consider it necessary to resort to such measures in order to obtain physical evidence of certain offences . It will then be the Court ’ s task to assess whether the reasons put forward to justify such measures were relevant and sufficient, and whether the proportionality principle has been adhered to . As regards the latter point, the Court must first ensure that the relevant legislation and practice afford individuals adequate and effective safeguards against abuse . Secondly, it must consider the specific circumstances of each case in order to determine whether, in the particular case, the interference in question was proportionate to the aim pursued . The criteria the Court has taken into consideration in determining this latter issue are, inter alia : the circumstances in which the order was issued, in particular whether any further evidence was available at that time; the content and scope of the order, having particular regard to the nature of the premises searched and the manner in which the search was conducted , including whether or not ind ependent observers were present ; and the extent of possible repercussions on the employment and reputation of the person affected by the search ( see, among many other authorities, Van Rossem v . Belgium , n o. 41872/98, §§ 42-43, 9 December 2004 ; Smirnov v . Russia , n o. 71362/01, § 44, 7 J un e 2007 ; Mancevschi v . Moldova , n o. 33066/04, § 45, 7 October 2008 ; Misan v . Russia , n o. 4261/04, § 55, 2 October 2014 ; and K.S. and M.S. v . Germany , n o. 33696/11, § 44, 6 October 2016).

43 . In the context of searches and seizures, the Court also requires that domestic law provides adequate and sufficient guarantees against arbitrariness ( see Gutsanovi v . Bulgaria , n o. 34529/10, § 220, ECHR 2013 ( extracts ) , and Vinci Construction and GTM Génie Civil et Services v . France , n os. 63629/10 and 60567/10, § 66, 2 Ap ril 2015). The Cour t also reiterates that these guarantees include the existence of “effective scrutiny” of measures encroaching on Article 8 of the Convention ( see Lambert v . France , 24 August 1998, § 34, Reports of Judgments and Decisions 1998 ‑ V).

Application of these principles in the present case

44 . The Court notes firstly that the search in question took place during the preliminary police investigation, which preceded the pre-trial investigation and was thus a particularly early stage of the criminal proceedings. The Court considers that a search carried out at th is stage must be accompanied by adequate and sufficient safeguards, ensuring that it is not used as a means of providing the police with compromising evidence relating to individuals who have yet to be identified as suspects in relation to an offence. The Court also considers it appropriate to distinguish the present case from certain of its judgments , cited by the applicant , in cases concerning searches carried out in lawyers ’ officers . Given the confidentiality of lawyer-client exchanges, t he relevant safeguards in respect of such searches may be stricter than those in respect of a private flat or business premises .

46 . The Court observes that the search warrant was drawn up in general terms . On 23 September 2010 the prosecutor at the court of appeal ordered the contested search in order to “ v erify whether criminal offences [had] been committed, in particular th e setting up of a criminal organisation ( A rticle 187 of the Criminal Code ) by S.G. and I.G. and by other persons connected with them and acting in collaboration with them” . He also invited the investigators to seize “any item or document found there in which, in [their] opinion, ha [ d ] a link with the case under consideration” . It appears that the public prosecutor did not include any information about the investigation in question and the items to be seized, thus conferring broad powers on the investigating officer . The warrant did not contain any list of items and documents connected with the nature of the offence and the premises listed were private or professional premises, with no indication of the owners ’ or occupier ’ s names . In addition, the prosecutor did not refer to the applicant by name, or describe what possible link he might have with the case under investigation.

47 . The Cour t accepts that there may be situations in which it is impossible to draw up search warrants with a high degree of accuracy. In particular, in cases such as the present one where the search was ordered with a view to gathering evidence in respect of suspicions of criminal activities over a prolonged period of time and involving several persons, i t would be illuso ry to require that the warrant contain precise information , such as a list of the items or documents to be seized .

48 . In such cases, however, and especially where domestic legislation does not provide for prior judicial scrutiny of the lawfulness and necessity of an investigative measure, other safeguards have to be in place, particularly in terms of the execution of the search warrant, so as to offset any inadequacies in the issuing and content of the warrant. In the present case, the Court note s that the Greek domestic legislation did not provide for such prior scrutiny : the obligation imposed on the prosecutor by Article 253A of the C CP to inform the indictment division within three days of a decision in urgent cases to conduct certain investigative acts a t the preliminary police investigation stage does not apply to searches .

49 . The Court reiterates that it has already had occasion to find that, for ex a mple, the absence of a prior judicial warrant may be counterbalanced by the availability of an ex post factum judicial review ( see Heino v . Finland , n o. 56720/09, § 45, 15 February 2011). Nonetheless, this review must be effective in the particular circumstances of the case in question ( see Smirnov v . Russia , cited above , § 45 in fine ).

50 . The Court notes, firstly, that the search conducted in the present case was accompanied by certain procedural safeguards . It was ordered by the public prosecutor at the court of appeal, who issued a search warrant (see, a contrario , the above-cited Gutsanovi judgment) and delegated this task to the Attica police headquarters . Furthermore, the search was carried out by a police officer accompanied by a deputy prosecutor .

53 . Those factors are sufficient for the Court to conclude that the interference was not proportionate to the legitimate aim pursued . This finding makes it unnecessary to e xamine the applicant ’ s other allegations, particularly those relating to the absence, during the search, of witnesses with legal knowledge and to the impact of the search on the confidentialit y of the applicant ’ s professional data .

54 . Accordingly, the Court considers that the Government have not shown that a fair balance was struck between the various interests involved in this case. It concludes that the measures complained of were not reasonably proportionate to the legitimate aims pursued, bearing in mind the interest of a democratic society in ensuring respect for the home . There has therefore been a violation of Article 8 of the Convention .

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FOR THESE REASONS, THE COURT, UNANIMOUSLY,

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2 . Holds that there has been a violation of Article 8 of the Convention;

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Done in English, and notified in writing on 16 March 2017 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Renata Degener Ledi Bianku Deputy Section Registrar Acting Pr e sident