THIRD SECTION

CASE OF YUDINTSEV AND SHISTEROV v. RUSSIA

(Applications nos. 78144/13 and 18082/14)

JUDGMENT

STRASBOURG

9 June 2022

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

In the case of Yudintsev and Shisterov 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 19 May 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 application no. 18082/14, the applicant 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 the secret surveillance in the context of the criminal proceedings. 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 ... life ....

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 covert surveillance measures, including video and audio recording of applicant’s communications, amount to an interference with his right to respect for his private life, within the meaning of Article 8 § 1 of the Convention, and are to be justified under Article 8 § 2 (see, for example, Bykov v. Russia [GC], no. 4378/02, § 72, 10 March 2009). It further reiterates that it is incumbent on 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).

8. The Court has already established, in a number of earlier cases, that the refusal on the part of the domestic authorities to disclose a surveillance authorisation to the applicants without a valid reason deprived them of any possibility to have the lawfulness of the surveillance measures and their “necessity in a democratic society” reviewed and amounted to a violation of Article 8 of the Convention (see, among other authorities, Šantare and Labazņikovs v. Latvia , no. 34148/07, §§ 60-62, 31 March 2016; Radzhab Magomedov v. Russia , no. 20933/08, §§ 80-84, 20 December 2016; and Zubkov and Others , cited above, §§ 122-32).

9. 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 case there is nothing to suggest that the domestic courts which authorised the covert surveillance against the applicants verified whether there was a “reasonable suspicion” against them or applied the “necessity in a democratic society” and “proportionality” test. Moreover, the refusal to disclose the surveillance authorisation to the applicants without any valid reason deprived them of any possibility to have the lawfulness of the measure, and its “necessity in a democratic society”, reviewed by an independent tribunal in the light of the relevant principles of Article 8 of the Convention.

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

11. Mr Shisterov (application no. 18082/14) 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 a violation of the Convention in the light of its well-established case-law (see Konstantin Moskalev v. Russia , no. 59589/10, §§ 23-36,7 November 2017).

12. 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.”

13. 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 v. Russia, no. 37717/05, 7 November 2017; 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.

14. 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 9 June 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

Representative’s name and location

Type of secret surveillance

Date of the surveillance authorisation

Name of the issuing authority

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]

78144/13

29/11/2013

Maksim Andreyevich YUDINTSEV

1977Kachalkov Arkadiy Anatolyevich

Tyumen

interception of telephone communications

30/06/2010, 04/07/2010, 20/07/2010, 10/08/2010, 20/07/2010, 29/09/2010, Tsentralnyy District Court of Tyumen

21/07/2010, Tyumen Regional Court

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

7,500

18082/14

06/02/2014

Andrey Yuryevich SHISTEROV

1971interception of telephone communications

from January to April 2003,

decision of the Perm Regional Court of 26/01/2006

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

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

7,500

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