Information Note on the Court’s case-law 212

November 2017

Dudchenko v. Russia - 37717/05

Judgment 7.11.2017 [Section III]

Article 8

Article 8-1

Respect for correspondence

Respect for private life

Covert surveillance without adequate legal safeguards: violations

Facts – The applicant complained, inter alia , about being subjected to covert surveillance, in particular, the interception of telephone communication s with an accomplice in criminal proceedings and his counsel. He alleged a violation of his right to respect for his private life and correspondence.

Law – Article 8

(a) Telephone conversations with accomplice – The interception of the applicant’s telepho ne communications amounted to an interference with the exercise of his rights as set out in Article 8 of the Convention.

As to whether the interference was “in accordance with the law”, the Court had found in Roman Zakharov that the judicial authorisation procedures provided for by Russian law were not capable of ensuring that covert surveillance measures were not ordered haphazardly, irregularly or without due and proper consideration. One of the issues identified in that case was that in their everyday pr actice the Russian courts did not verify whether there was a “reasonable suspicion” against the person concerned and did not apply the “necessity” and “proportionality” tests.

The Government had not produced any evidence to demonstrate that the Russian courts had acted differently in the applicant’s case. There was no evidence that any information or documents confirming the suspicion against the applicant had actually been subm itted to the judge. The only reason advanced by the court to justify the surveillance measures was that it “seem[ed] impossible to obtain the information necessary to expose [the applicant’s] unlawful activities by overt investigation”, without explaining how it had come to that conclusion. Such a vague and unsubstantiated statement was insufficient to justify the decision to authorise a lengthy (180 days) covert surveillance operation, which entailed a serious interference with the right to respect for the applicant’s private life and correspondence.

Conclusion : violation (six votes to one).

(b) Telephone conversations with counsel – In order to avoid abuses of power in cases where legally privileged material had been acquired through measures of secret surveillance, the following minimum safeguards needed to be set out in law. Firstly, the law had to clearly define the scope of the legal professional privilege and state how, under what conditions and by whom the distinction was to be drawn between privileged and non-privileged material. Given that the confidential relations between a lawyer and his clients belonged to an especially sensitive area which directly concerned the rights of the defence, it was unacceptable that that task should be assigned to a member of the executive, without supervision by an independent judge. Secondly, the legal provisions concerning the examination, u se and storage of the material obtained; the precautions to be taken when communicating the material to other parties; and the circumstances in which recordings may or must be erased or the material destroyed had to provide sufficient safeguards for the pr otection of the legally privileged material obtained by covert surveillance. In particular, the national law should set out with sufficient clarity and detail: procedures for reporting to an independent supervisory authority for review of cases where mater ial subject to legal professional privilege had been acquired as a result of secret surveillance; procedures for secure destruction of such material; conditions under which it may be retained and used in criminal proceedings and law-enforcement investigati ons; and, in that case, procedures for safe storage, dissemination of such material and its subsequent destruction as soon as it was no longer required for any of the authorised purposes.

Russian law proclaimed protection of legal professional privilege, w hich was understood as covering any information relating to legal representation of a client by an advocate. It did not, however, contain any specific safeguards applicable to interception of lawyers’ communications; lawyers were subject to the same legal provisions on interception of communications as anyone else. The Court had already found in Roman Zakharov that those legal provisions did not provide for adequate and effective guarantees against arbitrariness and the risk of abuse and were therefore inca pable of keeping the “interference” to what is “necessary in a democratic society”. Most importantly for the case at hand, the domestic law did not provide for any safeguards to be applied or any procedures to be followed in cases where, while tapping a su spect’s telephone, the authorities accidentally intercepted the suspect’s conversations with his or her counsel.

Conclusion : violation (six votes to one).

The Court also found, unanimously, violations of Article 3 on account of the conditions of the applic ant’s detention pending trial and the conditions in which the applicant was transported between detention facilities and, by six votes to one, a violation of Article 5 § 3, finding that his detention had not been based on sufficient reasons. Finally, the C ourt found, unanimously, that there had been no violation of Article 6 §§ 1 and 3 (c) on the basis that the removal of the applicant’s chosen counsel had not irretrievably prejudiced the applicant’s defence rights or undermined the fairness of the proceedi ngs as a whole.

Article 41: EUR 14,000 in respect of non-pecuniary damage.

(See Roman Zakharov v. Russia [GC], 47143/06, 4 December 2015, Information Note 191 ; see also the Factsheet on Mass surveillance )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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