Information Note on the Court’s case-law 205

March 2017

Modestou v. Greece - 51693/13

Judgment 16.3.2017 [Section I]

Article 8

Article 8-1

Respect for home

Search and seizure operation carried out at home and office in occupier’s absence on basis of widely drafted, non-judicial, warrant: violation

Facts – In September 2010, as part of a preliminary police investigation, the applicant’s home was searched and t wo computers and hundreds of documents were seized on the orders of the public prosecutor.

In November 2012 the applicant applied to the Indictment Division of the Court of Appeal to have the search declared null and void, the seizure order lifted and the seized items returned. However, his application was dismissed in February 2013. The court’s decision was based, inter alia , on an assessment of whether a search and seizure operation could be carried out in the context of a preliminary police investigation . The applicant unsuccessfully appealed against that decision.

Law – Article 8: The search by the investigating officers of the applicant’s private home and business premises and the seizure of several documents and computers belonging to him amounted to i nterference, in accordance with the law, with his right to respect for his home.

The search had been carried out as part of a preliminary police investigation, prior to the institution of criminal proceedings against the applicant. Its purpose had been to seek evidence and indications of involvement in a criminal organisation. Accordingly, it had pursued the aims of preventing disorder and crime.

A search carried out during a preliminary police investigation had to be accompanied by adequate and sufficient safeguards ensuring that it was not used as a means of providing the police with compromising evidence relating to individuals who had yet to be identified as suspects in relation to an offence.

The search warrant issued by the public prosecutor had been worded in general terms. There might be situations where it was impossible to draw up a warrant with a high degree of precision, as in the present case, where the search had been ordered with a vi ew to gathering evidence relating to suspicions of criminal activity involving several individuals over long periods.

However, in such cases, and in particular – as in the present case – where domestic law did not provide for prior judicial scrutiny of the lawfulness and necessity of the investigative measure in question, other safeguards should be in place, particularly in terms of the execution of the search warrant, so as to offset any inadequacies in the issuing and content of the warrant.

The search in the present case had been accompanied by certain procedural safeguards. Firstly, it had been ordered by the public prosecutor at the Court of Appeal, who had issued a search warrant and had delegated the task to the police headquarters. Secondly, the sear ch had been carried out by a police officer accompanied by a deputy prosecutor.

The applicant had not been present at any time during the search, which had lasted for twelve and a half hours, and it was not clear from the file whether the investigating off icers had attempted to inform him of their presence or of their actions, even though the Code of Criminal Procedure required the person carrying out the search to invite the occupant of the premises to attend. Even assuming that the authorities had intende d to employ a surprise effect by not informing the applicant in advance, there had been nothing to stop them from attempting to contact him, in compliance with the law, during the search itself, which had extended over several hours.

Lastly, there had bee n no immediate retrospective judicial review. The search had led to the seizure of two computers and hundreds of documents, and it had never been established whether all the documents concerned were directly linked to the offence under investigation. On th e basis of the wording of the warrant, questions could also arise as to whether the applicant had been informed of the background to the search, which would have enabled him to make sure that the search was limited to the investigation of the offence menti oned in the warrant and to complain of any abuses in that regard. The Indictment Division of the Court of Appeal, to which the applicant had applied, had given its decision more than two years after the events and had devoted most of it to determining whet her a search and seizure operation could be carried out during a preliminary police investigation. The domestic authorities had therefore fallen short of their obligation to provide “relevant and sufficient” reasons to justify issuing the search warrant.

I n these circumstances, the measures complained of had not been reasonably proportionate to the legitimate aims pursued, bearing in mind the interest of a democratic society in ensuring respect for the home.

Conclusion : violation (unanimously).

Article 41: EUR 2,000 in respect of non-pecuniary damage.

(See also Smirnov v. Russia , 71362/01, 7 June 2007, Information Note 98 , and Gutsanovi v. Bulgaria , 34529/10, 15 October 2013, Information Note 167 )

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

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