PARTLY DISSENTING OPINION OF JUDGES GROZEV AND RANZONI

While we agree with all the other findings in the present judgment, we find ourselves unable to follow the majority with respect to its ruling on the applicants ’ complaint of a violation of Article 8 as a result of the search of their home. We are of the view that the search warrant was not sufficiently precise in describing the items to be searched for and that this lack of specific description of the items to be seized was not counterbalanced by any subsequent safeguards.

In reviewing complaints of unlawful searches and seizures under Article 8 of the Convention, the Court has underlined the need for specificity in a search warrant. While the Court has never treated this as a stand-alone requirement but as one of the factors to be taken into consideration when deciding on the proportionality of the interference, it has still given it particular weight. According to the Court, a search warrant must be accompanied by certain limitations, in order to guarantee that the interference which it authorises is not potentially unlimited. The Court has held in this respect that the warrant itself must specify the items being searched for and that this cannot be supplemented by a description of those items in the application for a warrant made by the investigating or prosecuting authorities, unless that application is enclosed with the warrant when it is presented to the person whose premises are to be searched (see Van Rossem v. Belgium , no. 41872/98, § 47).

The purpose of such a requirement is quite obvious, namely to make it possible to verify subsequently whether the police officers who enforced it had complied with the scope of the authorised search (see Van Rossem , cited above ) . It is only where the person affected is informed of the items being searched for that he or she is able to check whether the search is being lawfully carried out and to react if it is not. For this reason, a subsequent review of the lawfulness of the search is also an element that the Court will take into account in assessing the lawfulness of the search warrant. A warrant that is too broad in scope can nonetheless be considered valid if there are other sufficient safeguards, including a procedure after the search in which the persons concerned can challenge it ( see Robathin v. Austria , no. 30457/06 , §§ 47 in fine and 48).

The sufficiency of the description of the items to be seized will certainly vary from case to case, depending on all the relevant circumstances, such as the place to be searched and the nature of the allegations (see Sher and Others v. the United Kingdom , no. 5201/11, § 174, ECHR 2015 (extracts) ). If the case is a large-scale and complex terror investigation, with a significant number of uncertainties, a wide description could well be sufficient ( ibid. ). However, in a financial fraud investigation, a search warrant granted “in order to investigate and seize any documents that might assist in the investigation” has been found by the Court to be insufficiently precise, as it imposed no limitation of any sort on the police officers carrying out the search (see Van Rossem , cited above).

Turning to the case at hand, we cannot help but note that the search warrant was couched in very broad terms. It referred solely to the crime that was being investigated, namely forgery of identity documents, and did not mention any specific items to be searched for (see paragraphs 10 and 11 of the judgment). The sufficiency of the description certainly has to be judged in the light of the information available to the authorities at the time they obtain the warrant and in the present case it was clear that at the time when the search warrant was requested and granted, the authorities did have quite specific information. The prosecuting authorities and the police were looking for technical equipment and storage devices – computers, hard drives, video cameras, flash memory drives – which could prove that the first applicant, a professional photographer, was forging Bulgarian identity documents. However, this information was not reflected in the search warrant or any other document communicated to the applicants during the search of their home. Furthermore, the search warrant did not refer to proceeds of the alleged crime. Nevertheless, the police also seized cash (see paragraph 15 of the judgment). This fact clearly demonstrates, in our view, that the search warrant was not sufficiently specific and limited in scope.

The fact that the searched premises were the home of the applicants made it even more important that in its search warrant the domestic court enumerate the items that the investigators were looking for. Such a procedural requirement seems neither excessively burdensome nor unreasonable, and it certainly allows a meaningful and effective subsequent review to be made. Combined with the fact that no subsequent review of the lawfulness of the search (see paragraphs 85 and 86 of the judgment), capable of protecting the applicants against any abuse or arbitrariness, was possible under the national law, the failure to specify the scope of the search warrant leads us to the conclusion that there was a violation of Article 8 of the Convention.