THIRD SECTION

CASE OF KOZHAKHMETOVY AND OTHERS v. RUSSIA

(Applications nos. 7072/14 and 4 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 Kozhakhmetovy 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 about searches of their homes. 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 about searches of their homes. 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 ... home ...

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 consistently held that the Contracting States may consider it necessary to resort to searches and seizures in order to obtain physical evidence of certain offences. The Court must assess whether the reasons adduced 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, the Court must consider the particular circumstances of each case in order to determine whether, in the case in question, the interference was proportionate to the aim pursued. The criteria the Court has taken into consideration in determining the latter issue have included the severity of the offence in connection with which the search was effected, the manner and circumstances according to which the order was issued – in particular whether the warrant was based on a reasonable suspicion – and the content and scope of the warrant, having particular regard to the nature of the premises searched and the safeguards put in place to confine the impact of the measure within reasonable bounds, and the extent of possible repercussions on the reputation of the person affected by the search.

9. The Court has previously found violations of Article 8 of the Convention in respect of searches of homes where the authorities breached the national law requirements to the search procedure (see Avaz Zeynalov v. Azerbaijan , nos. 37816/12 and 25260/14, § 81, 22 April 2021, and Kuzminas v. Russia , no. 69810/11, §§ 17-20, 21 December 2021).

10. Furthermore, the Court has found a search to be unjustified under Article 8 of the Convention where the authorities failed to demonstrate (a) that there were reasonable grounds for suspecting that the commission of crimes imputed to applicants or third people had occurred, (b) that there was evidence capable of corroborating those suspicions and (c) that the relevant evidence could be found in that regard at the premises to be searched (see, for instance, Aliyev v. Azerbaijan , nos. 68762/14 and 71200/14, § 184, 20 September 2018; Kruglov and Others v. Russia , nos. 11264/04 and 15 others, § 127, 4 February 2020, and Kuzminas , cited above, § 25). In cases where the authorities carried out urgent searches without prior judicial review, the Court considered it crucial for the authorities to also set out pressing circumstances justifying the recourse to such an urgent procedure (see Tortladze v. Georgia , no. 42371/08, § 64, 18 March 2021, and Kuzminas , cited above, §§ 23-24).

11. The Court also 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 (see Misan v. Russia , no. 4261/04, § 60, 2 October 2014, Kruglov and Others , cited above, § 127, with further references).

12. Finally, as noted above, another decisive aspect in the Court’s assessment of the necessity of an interference are the procedural safeguards available to an applicant. The first and foremost among them is the guarantee of review by a judge or other independent and impartial decision-making body capable to examine the existence of relevant and sufficient reasons for the search and its compatibility with the legal requirements (see Avanesyan v. Russia , no. 41152/06, §§ 30-34, 18 September 2014, Kruglov and Others , cited above, §§ 134-35).

13. In its judgments concerning searches of homes in Russia (see, for instance, Smirnov v. Russia , no. 71362/01, 7 June 2007; Kolesnichenko v. Russia , no. 19856/04, 9 April 2009; Avanesyan , cited above; Misan , cited above; Yuditskaya and Others v. Russia , no. 5678/06, 12 February 2015; Kruglov and Others , cited above; and Kuzminas , cited above) the Court has found a violation of Article 8 of the Convention due to the above-mentioned defects.

14. 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’ homes were not in accordance with law and/or not necessary in a democratic society.

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

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 Smirnov , cited above, §§ 58-59, Avanesyan , cited above, §§ 30-36, and Kruglov and Others , cited above, § 144.

17. In their applications the applicants also raised other complaints under various Articles of the Convention.

18. 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.

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

20. 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.”

21. Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Misan, cited above, § 70), 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.

22. 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

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 complaints under well-established case-law

Amount awarded for pecuniary and non-pecuniary damage per applicant /household

(in euros) [1]

Amount awarded for costs and expenses per application

(in euros) [2]

7072/14

15/12/2013

Household

Isa Kozhakhmetovich KOZHAKHMETOV

1953Idris Isayevich KOZHAKHMETOV

1986Ilyas Yakubovich Timishev

Nalchik

According to the police – an on-site examination;

according to the appeal court – an "urgent" search of the applicants’ house

No authorisation

30/03/2013

Shatoyskiy District Court of the Chechen Republic under Art. 125 of the CCrP terminated the proceedings on 07/05/2013. The Supreme Court of the Chechen Republic examined the complaint on its merits and dismissed it on 17/07/2013.

Not in accordance with law,

no adequate and sufficient safeguards against abuse: no judicial review of the search/search authorisation.

7,500

250

16326/15

24/03/2015

Olga Yuryevna MALEVANAYA

1983Konstantin Viktorovich Lazutkin

Yekaterinburg

Inspection of the applicant’s flat

23/09/2014,

The Sverdlovsk Regional Court

25/09/2014.

No 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 relevant or sufficient reasons to justify the search: no evidence supporting the search authorisation, no relevant or sufficient reasons to justify the search: no reasons given why any relevant objects or documents might be found during the search.

Art. 13 - lack of any effective remedy in domestic law – the initial court order authorising the search was not amenable to judicial review ( Avanesyan v. Russia , no. 41152/06,

§§ 30-36, 18 September 2014).

7,500

250

52864/15

15/10/2015

Svetlana Vladimirovna IVANOVA

1978Stanislav Anatolyevich Kolbin

St Petersburg

“urgent” search of the applicant’s flat

29/12/2014,

an investigator

29/12/2014

On 31/12/2014 the Kalininskiy District Court of St Petersburg declared the search lawful. On 15/04/2015 the Saint Petersburg City Court rejected the applicant’s complaint on appeal. On 19/06/2015 it also dismissed the applicant’s first cassation complaint. On 21/07/2015 the Supreme Court rejected her second cassation appeal.

The applicant is a sister of a suspect; 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 relevant or sufficient reasons to justify the search: applicant not a suspect, no relevant or sufficient reasons to justify the search: no evidence supporting the search authorisation, no reasonable suspicion as the basis for the search authorisation.

Prot. 1 Art. 1 - interference with peaceful enjoyment of possessions – seizure and retention of seized data-storage electronic devices by the authorities despite the applicant’s repeated requests to return her devices or to be allowed to copy the information on those devices (especially, the database of her clients).

9,750

250

60275/15

21/11/2015

Ruslan Sergeyevich PYLAYEV

1976Vladimir Ivanovich Radmayev

Vladivostok

“urgent” search of the applicant’s flat

08/10/2014,

an investigator

08/10/2014

On 09/10/2014 the Leninskiy District Court of Vladovistok upheld the lawfulness of the search. On 16/03/2015 the Primorye Regional Court upheld the above decision on appeal. The cassation complaints were dismissed respectively by the Primorye Regional Court on 20/08/2015 and by the Supreme Court on 17/11/2015.

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).

7,500

250

14675/16

18/02/2016

Nataliya Fedorovna POPOVA

1958Konstantin Viktorovich Baranovskiy

Moscow

“urgent” search of the applicant’s flat

20/02/2015,

an investigator

20/02/2015

On 21/02/2015 the Lobnenskiy District Court of the Moscow Region declared the urgent search lawful. On 03/09/2015 the Moscow Regional Court dismissed the appeal complaint.

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 relevant or sufficient safeguards against abuse: no reasons justifying the urgency of the search provided.

7,500

250[1] Plus any tax that may be chargeable to the applicants.

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