DISSENTING OPINION OF JUDGE DEDOV

I regret that I cannot agree with the conclusion of the majority that there has been a violation of Article 8 of the Convention. The Court has applied the proportionality test, even though the applicant claimed in the domestic proceedings that the transcripts of his conversations had been obtained unlawfully (paragraphs 33 and 37 of the judgment).

Before the Court, in his observations on page 27, the applicant merely claimed that the surveillance sanction was given by an unauthorised court. Also, he blamed the investigating authorities for having tapped another telephone number which he used in order to speak with his lawyer. These statements are contrary to the facts and the documents on file as the tapping of both numbers was authorised by a national court (that the transcripts of his conversations has been obtained unlawfully (paragraphs 7 and 11 of the judgment).

The majority stated that the national court did not verify whether there is a “reasonable suspicion” against the applicant as there is no indication in the case file that the courts acted differently in the present case. Although the Russian court noted, without giving details, that the police had information that the applicant was the leader of the gang and planned to commit extortions, there is no evidence that any documents confirming the suspicion against the applicant had been sub mitted to the judge (paragraphs 96 and 97 of the judgment).

This conclusion, in my view, contradicts to the findings of the trial court that the applicant had participated in the gang which planned and committed several offences, namely aggravated kidnapping, assault, aggravated robbery and extortion (paragraphs 6 and 36 of the judgment). That means that in fact there was a “reasonable suspicion”, that the interference was necessary in a democratic society and that the national court did not act arbitrarily. The majority, therefore, based their decision on allegations which were not supported by the circumstances of the case, and not even presented by the applicant himself. In my view, the present case should be differentiated from the Dragojevic case (see Dragojevic v. Croatia , no. 68955/11, 15 January 2015), where the suspicions were not confirmed by the same surveillance measures.

The Court adopted the same wrongful approach to the violation of Article 5 § 3 of the Convention. The national court did not mention the factual circumstances of the case, which nevertheless confirm that there were reasonable suspicions that the applicant had committed criminal offences, that he would continue to commit the offences and that he would try to abscond (see Article 5 § 1 (c) of the Convention). Such circumstances were well-known to the national court and could be easily derived from the case file as the applicant was a member of the organised criminal gang, and he had already made an attempt to go into hiding and to destroy incriminating evidence.

In both situations, in terms of the margin of appreciation, there were no serious reasons, in the present case, that could lead the Court to substitute its own assessment for that of the national authorities (see Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 66, 13 July 2012). I ought to add that the approach in the present case contradicts that used in the recent Grand Chamber case of Regner v. the Czech Republic (no. 3 5289/11, §§ 150-58, 19 September 2017), where the Court relied on the domestic courts ’ assessment of classified documents and on their decision not to disclose those documents as requested by the applicant. In the present case the applicant did not request for any document which constituted the basis for authorisation of surveillance measures.