Published on 27 September 2021

THIRD SECTION

Application no. 49238/12 Pavel Sergeyevich DVIGUN against Russia lodged on 10 July 2012 communicated on 10 September 2021

STATEMENT OF FACTS

The applicant, Mr Pavel Sergeyevich Dvigun, is a Russian national, who was born in 1980 and lives in Abakan, the Republic of Khakassia.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was a practicing lawyer and a member of the Bar of the Republic of Khakassia.

In July 2011 he began representing Mr G., a former migration service officer, seeking his reinstatement at work. As he learnt from his client, on 7 July 2011 a personal review board had held a public hearing on attestation of several migration service officers, including Mr G. During the hearing an internal document with information about allegedly reprehensible actions of Mr G. had been read out. As a result of the attestation, Mr G. had been dismissed for ineptitude to the position held.

During the court proceedings concerning Mr G.’s dismissal it became known that the internal document had been classified. The applicant and Mr G. signed non-disclosure agreements. The applicant was allowed to study the case-file at the court premises. He took a picture of the classified document, although, according to later statements of the judge and court staff workers, he had been instructed not to take any pictures.

The applicant prepared a separate lawsuit seeking to protect Mr G.’s reputation, contesting the veracity of the internal document. A copy of the document was joined to that lawsuit.

On 11 November 2011 a criminal investigation was initiated into the applicant’s alleged disclosure of a State secret.

On 16 November 2011 the Abakanskiy Town Court of the Republic of Khakassiya (“The Town Court”) authorised to search the applicant’s office to find “objects and documents relevant for the investigation” of the State secret disclosure criminal case.

On 24 November 2011 police searched the applicant’s office. During the search they seized documents and a CD disc with legally privileged information about the applicant’s clients which was unrelated to the criminal case initiated against him.

On 16 January 2012 the Supreme Court of the Republic of Khakassia (“the Khakassia Supreme Court”) upheld the court search warrant of 16 November 2011.

On 8 February 2012 a criminal investigation was opened into Mr D.’s alleged fraud. From 2004 to 2009 Mr D. had been the director of company D. The applicant had provided legal services and represented company D. between 2009 and 2011.

On 10 February 2012 the Town Court granted two of the investigator’s requests to search the applicant’s residential flat and office in order to find documents concerning financial and commercial activities of company D., company F. and other objects relevant to the criminal case.

On 14 February 2012 the police performed the searches.

On 30 March 2012 the Khakassiya Supreme Court dismissed the applicant’s complaints about two search orders of 10 February 2012.

On 8 November 2013 the Khakassiya Supreme Court convicted the applicant of having disclosed a State secret by having prepared a civil action seeking to refute the information contained in the certificate about Mr G. and having joined a copy of that certificate to that civil action.

The Khakassiya Supreme Court sentenced the applicant to four months of imprisonment and a one-year prohibition to work as an advocate.

On 5 February 2014 the Supreme Court of Russia acting on appeal modified the applicant’s sentence to a suspended prison term of four months, removed the prohibition to exercise advocate’s activities, and upheld the rest of the judgment.

COMPLAINTS

The applicant complains of searches of his premises under Article 8 of the Convention.

QUESTION TO THE PARTIES

As regards the search of the applicant’s premises, did the interference with the applicant’s right to respect for his private life, home and correspondence pursue a legitimate aim, was it “in accordance with law” and “necessary in a democratic society” as required by Article 8 of the Convention? In particular, was the applicant afforded sufficient procedural safeguards against interference with professional secrecy (see Kruglov and Others v. Russia , nos. 11264/04 and 15 others, § 132, 4 February 2020)?