THIRD SECTION

CASE OF MARGIYEV AND OTHERS v. RUSSIA

(Applications nos. 56984/10 and 2 others – see appended list)

JUDGMENT

STRASBOURG

28 July 2022

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

In the case of Margiyev and Others v. Russia,

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

Darian Pavli, President, Peeter Roosma, Frédéric Krenc, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 7 April 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. 49434/11 and 57823/11 the applicants 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, expressly or in substance, on Article 8 of the Convention, which reads as follows:

Article 8

“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 and that such interference will give rise to a breach of Article 8 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, Goranova-Karaeneva v. Bulgaria , no. 12739/05, § 45, 8 March 2011). It further reiterates that it is the obligation of 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). The failure to comply with these requirements has led the Court to conclude to a violation of the Article 8 of the Convention (see, for example, Dudchenko v. Russia , no. 37717/05, § 45, 7 November 2017, cited above, §§ 93-100, in which it was established that the domestic courts failed 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).

8. The Court does not lose sight that in earlier cases against Russia it has not established an availability of effective remedies for the applicants to exhaust prior to introducing a complaint before the Court (see, for example, Zubkov and Others , cited, above, §§ 85-99). In this connection, it 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 (ibid., §107 in fine ).

9. The Court is satisfied that the applicants’ complaints comply with the admissibility criteria set out in Article 35 of the Convention.

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. Having regard to its case-law on the subject, the Court considers that in the instant cases (as set out in the appended table) the courts did not verify the existence of a “reasonable suspicion” and did not apply the “necessity in a democratic society test” when examining the applicants’ complaints. The applicants’ ability to challenge the legal and factual grounds for ordering surveillance measures against them was further undermined by the refusal of access to the surveillance authorisations.

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

12. In application no. 49434/11, the applicant submitted a complaint under Article 13 of the Convention, given the relevant well-established case-law of the Court. This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that the complaint also discloses a violation of the Convention in the light of its well-established case-law (see, among other authorities, Konstantin Moskalev v. Russia, no. 59589/10, 7 November 2017, concerning the lack of an effective remedy in respect of the complaints about covert surveillance).

13. In application no. 57823/11, the applicant also raised other complaints under Articles 3 and 6 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, they 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 § 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 v. Russia, no. 21200/05, 7 November 2017, Zubkov and Others, cited above, Dudchenko, cited above, 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.

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 28 July 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 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]

56984/10

27/08/2010

Marat Valeryevich MARGIYEV

1979operative experiment, surveillance (“наблюдение”), collection of samples for a comparative examination

20/01/2010 Interior Department of the North Ossetiya-Alaniya Republic

The applicant was a lawyer (advocate) at the time of surveillance.

The applicant lodged a complaint about secret surveillance. Final judgment: the Supreme Court of the North Ossetiya -Alaniya Republic, on18/08/2010 (see Zubkov and Others v. Russia, nos. 29431/05 and 2 others,

§ 107, 7 November 2017).

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

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

7,500

49434/11

25/07/2011

Denis Aleksandrovich ARSHINSKIY

1983interception of telephone communications

22/04/2008, the Sakhalin Regional Court

The applicant was not given a copy of the surveillance authorisation; the applicant brought his grievances to the attention of the domestic courts that examined his criminal case, both before the first-instance and the cassation court. Final decision: Cassation judgment, 02/02/2011.

The applicant was refused access to the decisions authorising secret surveillance measures against him/her;

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 – to complain about the secret surveillance.

7,500

57823/11

03/06/2011

Vitaliy Anatolyevich MALIN

1972interception of telephone communications

19/01/2007; 26/06/2007 the Orel Regional Court

06/11/2007; 06/05/2008; 07/05/2008 the Zheleznodorozhnyy District Court of Orel

The applicant was not given copies of surveillance authorisations.

Final decision: Orel Regional Court on 25/03/2011.

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

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

7,500

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