THIRD SECTION

CASE OF DICHKO AND OTHERS v. RUSSIA

(Applications nos. 33724/14 and 2 others –

see appended list)

JUDGMENT

STRASBOURG

15 September 2022

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

In the case of Dichko and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Darian Pavli, President, Andreas Zünd, Mikhail Lobov, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 25 August 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. 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 that the interception of their telephone conversations in the course of the criminal proceedings against them had violated their right to respect for their private life, home and correspondence. 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.”

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. Such interference will give rise to a breach 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, Zubkov and Others v. Russia , nos. 29431/05 and 2 others, §§ 120 and 122 in fine , 7 November 2017).

8. In the leading cases of Bykov v. Russia [GC], no. 4378/02, 10 March 2009, 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 v. Russia, no. 59589/10, 7 November 2017, the Court has already found a violation in respect of the issues similar to those in the present case. In particular, in Dudchenko , the domestic courts’ failure 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 has led the Court to conclude that there had been a violation of the applicant’s right set out in Article 8 of the Convention (see Dudchenko , cited above, §§ 97-100).

9. The Court also reiterates that the applicants cannot be reproached for their attempt to bring their grievances to the attention of the domestic courts through the remedies which they mistakenly considered effective in the absence of evidence that they were aware or should have become aware of the futility of their course of action (compare, Zubkov and Others , cited, above, § 107 in fine).

10. 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. There is no evidence that any information or document confirming the suspicion against the applicants was submitted to the courts which authorised interception of the applicants’ telephone conversations. Nor is there any indication that those courts applied the test of “necessity in a democratic society”, and, in particular, assessed whether the surveillance measures carried out against the applicants were proportionate to any legitimate aim pursued.

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

12. 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 well ‑ established case-law (see, among other authorities, Veselov and Others v. Russia , nos. 23200/10 and 2 others, 2 October 2012, concerning incitement by State agents to commit a drug-related offence, Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, ECHR 2014 (extracts), related to placement in a metal cage during court hearings, and Konstantin Moskalev , cited above, concerning lack of an effective remedy in respect of the complaints about covert surveillance).

13. In application no. 3596/16, the applicant also raised other complaints under various Articles of the Convention.

14. The Court has examined these complaints 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.

It follows that this part of the application must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

15. 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.”

16. Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Akhlyustin, cited above, Zubkov, cited above, Dudchenko, cited above, Moskalev, cited above, and Konstantin Moskalev , cited above), the Court considers it reasonable to award the sums indicated in the appended table.

17. 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 15 September 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

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]

33724/14

26/03/2014

Roman Aleksandrovich DICHKO

1979interception of telephone communications

02/11/2011, Kalininskiy District Court of the Krasnodar Region (for monitoring of communication data)

26/05/2011, 11/06/2011, 24/06/2011, 08/07/2011, Krasnodar Regional branch of the Federal Service for Drug Control (operative experiment - test purchase with audio recording)

the courts did not verify the existence of a “reasonable suspicion” and did not apply the “necessity in a democratic society test”

Art. 6 (1) - entrapment by State agents - multiple test purchases (cannabis) instigated by the police (27/05/2011, 11/06/2011, 08/07/2011 and 20/07/2011): lack of incriminating information, fellow drug user, pressure to buy. Final decision - Krasnodar Regional Court, 16/10/2013

9,750

3596/16

31/12/2015

Yuliya Vladimirovna ANDREYEVA

1985interception of telephone communications

21/03/2014 and 15/04/2014, Sovetskiy District Court of Tula

the final decision on the matter was taken by the Tula Regional Court on 19/08/2015

the courts did not verify the existence of a “reasonable suspicion” and did not apply the “necessity in a democratic society test”

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

7,500

78500/17

04/10/2017

Damir Fazylzhanovich SARMASIN

1978interception of telephone communications

19/11/2014; 23/12/2014; 26/01/2015; 28/01/2015; 30/01/2015; 04/02/2015; 08/05/2015, 31/08/2015,

Leninskiy District Court of Orsk

The applicant raised the complaint in the course of the criminal proceedings against him which ended on 26/06/2017.

the courts did not verify the existence of a “reasonable suspicion” and did not apply the “necessity in a democratic society test”

Art. 13 - lack of any effective remedy in domestic law - in respect of the complaint under Article 8.

Art. 3 - use of metal cages and/or other security arrangements in courtrooms - The applicant was placed in a metal cage during the hearings between 22/05/2015 and 26/06/2017 at the Leninskiy District Court of Orsk

9,750

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