THIRD SECTION

CASE OF NEFEDOV AND OTHERS v. RUSSIA

(Applications nos. 11091/15 and 5 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 Nefedov 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. 35880/15 and 60001/16, the applicants also raised complaints under Article 13 of the Convention.

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 that judicial orders authorising covert video and audio recordings of their communications had not been disclosed to them in contravention of Article 8 of the Convention, which, in so far as relevant, 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 covert surveillance measures, including video and audio recording of the applicant’s communications, amount to an interference with his right to respect for his private life, within the meaning of Article 8 § 1 of the Convention, and are to be justified under Article 8 §2 (see, for example, Bykov v. Russia [GC], no. 4378/02, § 72, 10 March 2009). It further reiterates that it is incumbent on 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).

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 , cited above, §§ 122-32).

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 applicants 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 by an independent tribunal 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.

11. In applications nos. 35880/15 and 60001/16 the applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see 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, §§ 23-36, 7 November 2017, concerning the lack of an effective remedy in respect of the complaint about the secret surveillance.

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, 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, cited above), the Court considers it reasonable to award the sums indicated in the appended table.

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]

11091/15

25/02/2015

Viktor Ivanovich NEFEDOV

1956Yekaterina Viktorovna Yefremova

Moscow

interception of telephone communications

29/10/2009, 15/01/2010, 20/05/2010, 30/11/2010, 19/05/2011

Vladimir Regional Court; The final decision in the criminal case against the applicant was taken by the Supreme Court of the Russian Federation on 27/08/2014.

the applicant was refused access to the decisions authorising secret surveillance measures against him

7,500

35880/15

15/07/2015

Aleksandr Sergeyevich FILIPPOV

1976Mikhail Valeryevich Ovchinnikov

Vladimir

interception of telephone communications

30/04/2013, 14/11/2013, 13/05/2014, Vladimir Regional Court.

The applicant complained under Art 125 of the Russian Code of Criminal Procedure before the domestic authorities seeking to declare the investigator’s inaction (failure to provide surveillance authorisations) illegal. On 10/02/2015 the Leninskiy District Court of Vladimir dismissed the applicant’s complaint (upheld on appeal by the Vladimir Regional Court on 31/03/2015).

the applicant was refused access to the decisions authorising secret surveillance measures against him

Art. 13 - lack of any effective remedy in domestic law to complain about secret surveillance in the context of the criminal proceedings.

7,500

58281/15

13/11/2015

Denis Yuryevich VORONKOV

1980Aleksandr Vladimirovich Kiryanov

Taganrog

collection of data from technical channels of communication, interception of telephone communications

15/10/2012, Taganrog Town Court;

November 2012 (unspecified date), Taganrog Town Court;

2013 (unspecified date, but prior to 04/10/2013), Taganrog Town Court.

The applicant raised the complaint about secret surveillance in a separate set of administrative proceedings. The final decision on the matter was taken by the Rostov Regional Court on 18/05/2015.

the applicant was refused access to the decisions authorising secret surveillance measures against him, no criminal proceedings were instituted against the applicant, the applicant’s request to have the surveillance materials disclosed to him was refused

7,500

60001/16

29/09/2016

Arbi Khamzatovich DUDAYEV

1965interception of telephone communications, operative experiment

14/01/2014, 24/01/2014, 06/02/2014, 10/02/2014, 14/02/2014, decisions of the Deputy Chief of the General Directorate of the Ministry of Internal Affairs of the Central Federal District;

15/01/2014, 27/01/2014, 7/02/2014, 10/02/2014, 17/02/2014, decision of the Moscow City Court.

The final decision in the criminal case against the applicant was taken by the Moscow City Court on 30/03/2016.

the applicant was refused access to the decisions authorising secret surveillance measures against him, the applicant’s request to have the surveillance materials disclosed to him was refused

Art. 13 - lack of any effective remedy in domestic law to complain about secret surveillance in the context of the criminal proceedings.

7,500

14442/17

07/02/2017

Aleksandr Sergeyevich PERKOV

1977Yevgeniy Fedorovich Pyatitskiy

Rostov-on-Don

operative experiment, interception of telephone communications

11/12/2014, Rostov Department of Federal Drug Control Service.

The final decision in the criminal proceedings against the applicant was taken by the Rostov Regional Court on 05/10/2016.

the applicant was refused access to the decisions authorising secret surveillance measures against him, no judicial authorisation for interception of communications

7,500

41773/20

27/08/2020

Ayas Plotkayevich SAAYA

1970Natalya Andreyevna Balog

Krasnoyarsk

interception of telephone communications, collection of data from technical channels of communication, interception of postal communications, surveillance (“наблюдение”), monitoring of communication data, interception of electronic communications, operative experiment

12/12/2013, 24/12/2014, 01/07/2015, 23/12/2015, 08/08/2016, 02/12/2016, Supreme Court of the Republic of Tyva.

The applicant learnt of the existence of the surveillance order of 12/12/2013 on 17/04/2020.

applicant was not given a copy of the surveillance authorisation of 12/12/2013. The period of secret surveillance lasted from 12/12/2013 to 08/03/2017

7,500

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