THIRD SECTION

CASE OF PETLIN AND YAKUPOV v. RUSSIA

(Applications nos. 14829/12 and 20420/12 – see appended list)

JUDGMENT

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

5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

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 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). 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 merits 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.

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).

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).

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,

(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

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]

14829/12

27/02/2012

Maksim Anatolyevich PETLIN

1973Sergey Vyacheslavovich Kolosovskiy

Yekaterinburg

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

20420/12

12/03/2012

Vildar Khamitovich YAKUPOV

1979Raul Amurovich Khashimov

Chelyabinsk

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

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