THIRD SECTION

CASE OF PITKEVICH AND SAUSHINA v. RUSSIA

(Application no. 20296/17)

JUDGMENT

STRASBOURG

27 October 2022

This judgment is final but it may be subject to editorial revision.

In the case of Pitkevich and Saushina 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 an application against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 25 February 2017.

2. The Russian Government (“the Government”) were given notice of the application.

THE FACTS

3. The list of applicants and the relevant details of the application are set out in the appended table.

4. The applicants complained of the secret surveillance in the context of criminal proceedings and the lack of an effective remedy in that respect. They also raised other complaints under the provisions of the Convention

THE LAW

5. The applicants complained that the authorities had tapped their telephone conversations, the first applicant being defence counsel of the second applicant. They relied on Article 8 of the Convention, which reads as follows:

“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.”

6. The Court reiterates that, while Article 8 protects the confidentiality of all correspondence between individuals, it will afford “strengthened protection” to exchanges between lawyers and their clients, as lawyers would be unable to defend their clients if they were unable to guarantee that their exchanges would remain confidential (see Michaud v. France , no. 12323/11, § 118, ECHR 2012, and R.E. v. the United Kingdom , no. 62498/11, § 131, 27 October 2015). The Court has developed minimum safeguards that should be set out in national law to avoid abuses of power in cases where legally privileged material has been acquired through measures of secret surveillance (see Dudchenko v. Russia , no. 37717/05, §§ 106-07, 7 November 2017).

7. In an earlier case against Russia, the Court has established that, while proclaiming protection of legal professional privilege, which covers any information relating to legal representation of a client by an advocate, Russian law contains no specific safeguards applicable to interception of lawyer’s communications and, in particular, no safeguards to be applied or any procedures to be followed in cases, where, while tapping a suspect’s telephone, the authorities accidentally intercept the suspect’s conversation with his or her counsel. Against such background, the Court concluded that the relevant provisions of the Russian law did not meet the “quality of law requirement” set out in Article 8 § 2 of the Convention. In the Court’s view, they do not provide for any safeguards against abuse of power in cases where legally privileged material has been acquired through measures of secret surveillance (ibid., §§ 108-10).

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. It considers that the interception and recording of the applicants’ communications were not accompanied by adequate safeguards against possible abuse, were open to arbitrariness and inconsistent with the requirement of lawfulness.

9. These complaints are therefore admissible and disclose a breach of Article 8 of the Convention.

10. 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, §§ 25-36, 7 November 2017.

11. 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.”

12. 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, cited above; Moskalev v. Russia, no. 44045/05, 7 November 2017; and Konstantin Moskalev, cited above), the Court considers it reasonable to award to each of the applicants the sum indicated in the appended table.

13. 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 amount 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

Application raising complaints under Article 8 § 1 of the Convention

(secret surveillance in the context of criminal proceedings)

Application no.

Date of introduction

Applicant’s name

Year of birth

Type of secret surveillance

Date of the surveillance authorisation

Name of the issuing authority

Other relevant information

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]

20296/17

25/02/2017

Sergey Vladimirovich PITKEVICH

1978Zinaida Vasilyevna SAUSHINA

1961interception of telephone communications

23/05/2016, Bratsk Town Court

Interception of telephone communications between the applicants (the first applicant being the second applicant’s counsel), the second applicant is charged with bribery; criminal proceedings are pending, the applicants were refused access to the surveillance authorisations and materials obtained during the surveillance.

The applicants were refused access to the decisions authorising secret surveillance measures, lack of safeguards in case of accidental interception of a suspect’s communications with counsel (“quality of law”).

Art. 13 - lack of any effective remedy in domestic law in respect of telephone tapping

7,500

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