CONCURRING OPINION OF JUDGES LEMMENS AND DEDOV

We voted with our colleagues in finding that there has been a violation of Article 8 of the Convention.

We would , however, prefer a slightly different approach to the issue of the justification for the search of the applicants ’ house.

The majority finds that the search was not “lawful”. It considers that the Suppression of Terrorism Act 1998 (hereafter the “Act”) did not define with sufficient clarity the scope of the powers of State agents engaged in counter-terrorist operations, and therefore did not offer adequate and effective safeguards against abuse. Moreover, there was no specific warrant authorising the search and clearly indicating its purpose and scope.

We are not convinced that this analysis is sufficient to conclude that Article 8 of the Convention has been violated.

Under Article 8 § 2 of the Convention, an interference with the right to respect for a person ’ s home must be “in accordance with the law”. The latter phrase not only requires compliance with domestic law but also relates to the quality of that law, requiring it to be compatible with the rule of law. In certain cases, especially in the context of secret measures by public authorities, this implies that the law itself must provide protection against arbitrary interference with an individual ’ s right under Article 8 (see Bykov v. Russia [GC], no. 4378/02, § 76, 10 March 2009; see also Malone v. the United Kingdom , 2 August 1984, Series A no. 82, § 67; Amann v. Switzerland [GC], no. 27798/95, § 56, ECHR 2000-II; and Rotaru v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V).

In the present case, the counter-terrorist operation was based on the Act and carried out within the framework of a criminal investigation. Under s ection 13, part 1, point 3 of the Act, agents involved in a counter-terrorist operation were entitled to arrest persons who had violated the law. Under s ection 13, part 1, point 4 of the Act, these agents also had the right to enter private residential or other premises while pursuing persons suspected of committing terrorist acts, where any delay might jeopardise human life or health (see paragraph 32 of the judgment ). At first sight , the latter provision provides the legal basis for the search in question.

H aving regard to the circumstances of the present case, w e wonder whether it is possible to s tate that the Act does not define with sufficient clarity the scope of the powers of agents involved in a counter-terrorist operation and the manner of their exercise. In this respect , we note that the operation in question did not concern a search for undefined items (as in the Imakayeva and Smirnov cases, cited in paragraphs 55 and 56 of the judgment ). N or did it concern an operation as drastic as the destruction of houses during an aerial attack (as in the Esmukhambetov case, cited in paragraph 55). The operation under review was set up to arrest a named individual, Mr Ali Taziyev , who was suspected of terrorist acts. While considerable means were deployed, the object of the operation was limited in scope.

We do not call into question the Court ’ s case - law to the effect that the Act was formulated in vague and general terms and did not afford an individual adequate protection against arbitrariness (see Khamidov v. Russia , no. 72118/01, § 143, 15 November 2007). However, we are not convinced that the general deficiencies in the Act are sufficient, in this particular case, to conclude that the interference was not lawful. In any event, we would prefer to concentrate on the issue of whether the operation of 27 December 2005 complied with domestic law, in particular the Act.

In this respect, we agree with the majority that the fact that no individual decision authorising the operation has been produced is problematic. We are not persuaded that a written order is always needed in the context of a counter-terrorist operation. However, where no such order is produced, the Government should at least submit other documents relating to the operation which make sufficiently clear the reason s for which the operation was ordered at that precise moment and how the operational limits were defined. Without an order or other documents, the Court is unable to conclude, for instance, that recourse to the extraordinary powers under the Act was justified by ascertainable facts, or that the incursion into the applicants ’ house was justified by the existence of an imminent danger to human life or health.

We therefore conclude, like the majority, that the interference was not “in accordance with the law”, but we do so on a somewhat narrower basis.