THIRD SECTION

CASE OF AGORA AND OTHERS v. RUSSIA

(Applications nos. 28539/10 and 2 others – see appended list)

JUDGMENT

STRASBOURG

13 October 2022

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

In the case of Agora 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 15 September 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 searches of their professional premises. They also raised other complaints under the provisions 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 principally of searches of their professional premises. 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 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.”

7. The Court reiterates that searches of the applicants’ homes amount to an interference with their rights under Article 8 § 1 of the Convention. To be justified under Article 8 § 2 of the Convention an interference has to be in accordance with law, to pursue a legitimate aim and to be necessary in a democratic society.

8. The Court has repeatedly held that persecution and harassment of members of the legal profession strikes at the very heart of the Convention system. Therefore, searches of lawyers’ homes or offices should be subject to especially strict scrutiny. To determine whether the measures were “necessary in a democratic society”, the Court has to ascertain whether effective safeguards against abuse or arbitrariness were available under domestic law and how those safeguards operated in the specific cases under examination. Elements to be taken into consideration in this regard are the severity of the offence in connection with which the search and seizure were effected, whether they were carried out pursuant to an order issued by a judge or a judicial officer or subjected to after-the-fact judicial scrutiny, whether the order was based on reasonable suspicion, and whether its scope was reasonably limited. The Court must also review the manner in which the search was executed, including – where a lawyer’s office is concerned – whether it was carried out in the presence of an independent observer or whether other special safeguards were available to ensure that material covered by legal professional privilege was not removed. The Court must lastly take into account the extent of the possible repercussions on the work and the reputation of the persons affected by the search (see Kruglov and Others v. Russia , nos. 11264/04 and 15 others, § 125, 4 February 2020, with further references).

9. The Court reiterates that in a number of previous Russian cases it was the vagueness and excessively broad terms of search warrants giving the authority executing them unrestricted discretion in determining the scope of the search that were considered to constitute the decisive element for the finding of a violation of Article 8 of the Convention (see Kruglov and Others , cited above, § 127, with further references).

10. Another decisive aspect in the Court’s assessment of the necessity of an interference are the procedural safeguards available to an applicant. In a number of cases concerning searches of lawyers’ premises the Court has established the lack of procedural safeguards capable to prevent interference with professional secrecy (see Smirnov v. Russia , no. 71362/01, § 44 and 48, 7 June 2007; Kolesnichenko v. Russia , no. 19856/04, §§ 31-35, 9 April 2009; Yuditskaya and Others v. Russia , no. 5678/06, §§ 27-31, 12 February 2015; and Kruglov and Others , cited above, § 132) and found a violation of Article 8 of the Convention.

11. 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 the complaints in the present cases. Having regard to its case-law on the subject, the Court considers that in the instant case the searches of the applicants’ professional premises were not necessary in a democratic society.

12. These complaints are therefore admissible and disclose a breach of Article 8 § 1 of the Convention.

13. In application no. 25142/19 the applicant 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 Dirdizov v. Russia , no. 41461/10, §§ 108-10, 27 November 2012 and Idalov v. Russia [GC], no. 5826/03, §§ 154-58, 22 May 2012.

14. In applications nos. 28539/10 and 40035/18 the applicants also raised other complaints under various Articles of the Convention.

15. The Court has examined the applications and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

16. It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.

17. 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.”

18. Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Misan v. Russia, no. 4261/04, § 70, 2 October 2014), the Court considers it reasonable to award the sums indicated in the appended table and dismisses the remainder of the applicants’ claims for just satisfaction.

19. 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 13 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

(unlawful search)

No.

Application no.

Date of introduction

Applicant’s name

Year of birth/registration

Representative’s name and location

Type of search

Premises

Date of the search authorisation

Name of issuing authority

Date of the search

Means of exhaustion

Specific defects

Other relevant information

Other complaints under well ‑ established case ‑ law

Amount awarded for pecuniary and non ‑ pecuniary damage and costs and expenses per applicant

(in euros) [1]

28539/10

07/04/2010

(4 applicants)

AGORA

2005Ramil Khaidarovich AKHMETGALIYEV

1977Irina Vladimirovna KHRUNOVA

1975Pavel Vladimirovich CHIKOV

1978Natasha Ognyanova Dobreva

Sofia

Inspection of the applicants’ office

20/07/2009

An investigator (no prior judicial authorisation)

21/07/2009

On 19/08/2009 the Vakhitovskiy District Court of Kazan declared lawful the investigator’s decision of 20/07/2009. On 08/10/2009 the Supreme Court of the Tatarstan Republic upheld the above decision on appeal.

On 18/11/2009 the Vakhitovskiy District Court of Kazan declared some of the police actions (regarding the inspection’s record) unlawful and dismissed the remainder of the applicants’ complaint under Article 125 of the CCrP. On 22/12/2009 the Supreme Court of the Republic of Tatarstan modified the above decision, inter alia, by removing the finding that some of the police actions had been unlawful and upheld the remainder of the decision on appeal.

no adequate and sufficient safeguards against abuse: broad terms/wide content and scope of the search warrant (objects and documents not specific enough to restrict police’s discretion), no sifting procedure of the electronic data, no relevant or sufficient reasons to justify the search: no reasonable suspicion as the basis for the search authorisation, no special safeguards for lawyers: no presence of independent observers

The first applicant is an association of human rights NGOs involved in human rights litigations, the second applicant is its director, and the other two applicants are lawyers, admitted to Bar, working for the first applicant.

7,750

40035/18

13/08/2018

Pavel Aleksandrovich KAZAREZ

1978Andrey Valentinovich Kiselev

Moscow

"urgent search" of the applicant’s office

07/06/2017

An investigator (no prior judicial authorisation)

07/06/2017

On 31/05/2019 the Presnenskiy District Court of Moscow declared the search of the applicant’s office lawful. On 03/07/2017 the Moscow City Court upheld that decision on appeal.

no adequate and sufficient safeguards against abuse: no sifting procedure of the electronic data, no relevant or sufficient reasons to justify the search: applicant not a suspect, no special safeguards for lawyers: no presence of independent observers

7,750

25142/19

28/04/2019

Vadim Albertovich DENIYEV

1959Andrey Yevgenyevich Golubenko

Nea Skiony

Inspection of a law firm and the applicant’s working place there

19/10/2018

The Moscow Regional Court

22/11/2018

On 03/12/2018 the Krasnogorsk Town Court of the Moscow Region refused to accept for examination the applicant’s complaint under Article 125 of the CCrP.

On 05/03/2019 the Moscow Regional Court upheld the decision of 03/12/2018 on appeal.

no adequate and sufficient safeguards against abuse: broad terms/wide content and scope of the search warrant (objects and documents not specific enough to restrict police’s discretion), no special safeguards for lawyers: no presence of independent observers, no special safeguards for lawyers: no special instructions by a judge regarding privileged materials

The applicant was a lawyer admitted to the Bar

Art. 5 (3) - lack of relevant and sufficient reasons for detention: initial placement into detention – 20/12/2018 – Babushkinskiy District Court of Moscow; upheld on 17/01/2019 – Moscow City Court; grounds: seriousness of the charges; the applicant’s knowledge of the criminal investigation procedures; risks of interfering with justice. Subsequent extensions on essentially the same reasons until 21/10/2019 (see Dirdizov v. Russia, no. 41461/10, §§ 108-10, 27 November 2012)

Art. 5 (4) - deficiencies in proceedings for review of the lawfulness of detention: delays in examination of the applicant’s appeal complaints, the longest being 3 months, 16 days: detention order of 07/05/2019 of the Babushkinskiy District Court of Moscow was upheld by the Moscow City Court on appeal on 22/08/2019 (see Idalov v. Russia [GC], no. 5826/03, §§ 154-158, 22 May 2012)

10,000

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