Published on 30 May 2022

THIRD SECTION

Application no. 3882/21 Frédéric Yves Michel NOËL against Estonia lodged on 12 January 2021 communicated on 13 May 2022

SUBJECT MATTER OF THE CASE

The complaint concerns the manner in which a search of the applicant’s home was authorised.

The applicant was a suspect in criminal proceedings. In the context of these proceedings, the prosecutor authorised the search of the applicant’s home on 9 June 2020. The search was carried out on 10 June 2020 and on 11 June 2020 a preliminary investigation judge further approved the search by way of endorsement ( pealdisena ) of the prosecutor’s search warrant. The applicant has not been issued with the copy of the search warrant. In subsequent proceedings (proceedings regarding appeal against investigative activities – uurimiskaebemenetlus ) concerning the said search warrant, the applicant argued, inter alia, that the search of his home was unlawful for the reason that the domestic judge merely endorsed the search warrant, but had not conducted an effective review of the lawfulness and necessity of the search. On 28 August 2020 the Harju County Court dismissed his appeal, noting that the search had taken place in accordance with the domestic law and on the basis of a reasoned search warrant issued by the prosecutor, which had been subject to ex post judicial control. It also found that under domestic law there was no obligation to issue the applicant with the copy of the search warrant during pre-trial proceedings. This decision was not amenable to appeal.

The applicant complains that the manner in which the search was authorised by the prosecutor and was only retrospectively approved by a preliminary investigation judge by way of endorsement violated his rights under Article 8.

QUESTIONS TO THE PARTIES

Has there been a violation of the applicant’s right to respect for his home, contrary to Article 8 of the Convention? More specifically, did the domestic legislation and practice provide effective protection to the applicant against arbitrary interference with his Article 8 rights (see Brazzi v. Italy , no. 57278/11, §§ 41-48, 27 September 2018; DELTA PEKÁRNY a.s. v. the Czech Republic , no. 97/11, §§ 83 and §§ 86-88, 2 October 2014; Gutsanovi v. Bulgaria , no. 34529/10, §§ 220-223, ECHR 2013 (extracts) ?

In replying to these questions, the parties are invited to reflect on the procedure for the authorisation of the search and its ex post judicial review (including the review in the context of appealing against investigative activities – uurimiskaebemenetlus ) as well as the impossibility for the applicant to obtain a copy of the search warrant.

The Government are invited to clarify, in the light of the domestic law and practice, the purpose, the scope and the practical consequences of the ex post judicial review (including the possibility for the preliminary investigation judge not to approve the search and the practical effect of such a decision).

The Government are also invited to submit the prosecutor’s search warrant (dated 9 June 2020) and relevant document(s) concerning the preliminary investigation judge’s retrospective approval of the search on 11 June 2020.