JOINT DISSENTING OPINION OF JUDGES NUSSBERGER AND RANZONI

We have voted with the majority in favour of finding a violation of Article 6 § 1 of the Convention. Our disagreement relates to the finding “ that it is not necessary to examine the admissibility and merits of the complaints under Article 8 both taken alone and in conjunction with Article 13 of the Convention” (point 4 of the operative provisions). We are of the opinion that the application should have been analysed separately under Article 8.

The majority state in paragraph 37 of the judgment “that the main legal question in the present application concerned the impossibility for the applicant to obtain judicial review of the substance of his complaint raised under Article 8” . However, we would point to the difference in the nature of the interests protected by Article 6, namely procedural safeguards, and by Article 8, namely ensuring proper respect for, inter alia , private life and protecting the individual against arbitrary interference by the public authorities. With regard to the particular circumstances of the case, we consider that the complaint under Article 8 goes beyond the fair-trial aspect of Article 6.

The searching of residential premises entailing, as here, the seizure of electronic equipment constitutes interference with the “private life” and “home” of those concerned. The Court has consistently held that the Contracting States may consider it necessary to resort to such measures in order to obtain physical evidence of certain offences. However, it will assess whether the reasons put forward to justify such measures were relevant and sufficient, and, in particular, whether the proportionality principle has been adhered to. The Court must ensure that the relevant legislation and practice afford individuals adequate and effective safeguards against abuse (see K.S. and M.S. v. Germany , no. 33696/11, § 44, 6 October 2016, with further references). The fact that a search is based on a warrant issued by a judge does not necessarily amount to a sufficient safeguard. It also matters, inter alia , whether prior judicial scrutiny was properly carried out and whether the legal framework and the limits on the powers exercised afforded adequate protection against arbitrary interference by the authorities (see Posevini v. Bulgaria , no. 63638/14, § 70, 19 January 2017 [not yet final]; Vinci Construction and GTM Génie Civil et Services v. France , nos. 63629/10 and 60567/10, § 79, 2 April 2015; and K.S. and M.S. v. Germany, § 45, cited above).

In this respect, we first note that the search warrant (see paragraph 6 of the judgment) lacked any details concerning the criminal proceedings within the framework of which the search was ordered, and that the wording of the warrant casts doubt on whether prior judicial scrutiny was properly carried out. The absence of such scrutiny may be counterbalanced by the possibility of an ex post factum judicial review of the search and seizure (see Heino v. Finland , no. 56720/09, § 45, 15 February 2011, with further references). However, in the present case the Government have not shown that such an effective remedy was available (see paragraph 31 of the judgment).

Furthermore, the police, when conducting the house search, clearly overstepped the limits of the warrant in so far as they seized three mobile phones (two Samsungs and one Nokia), whereas the search warrant referred only to one specific “Nokia 7270 mobile telephone” (see paragraphs 6 and 7 of the judgment). This abuse of power occurred without the legal framework and practice affording the applicant any adequate and effective safeguards against such arbitrary interference with his right to respect for his private life.

The aforementioned shortcomings are not sufficiently covered by the finding of a violation of Article 6 of the Convention. Against this background, we are of the opinion that the complaint under Article 8 of the Convention should have been assessed separately and that the Court should have found a violation also in this regard.