CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 7 novembre 2017

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RUSSIA   (Application no. 37717/05)                   JUDGMENT           STRASBOURG   7 November 2017   FINAL   05/03/2018   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Dudchenko v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Helena Jäderblom, President,   Branko Lubarda,   Helen Keller,   Dmitry Dedov,   Pere Pastor Vilanova,   Alena Poláčková,   Georgios A. Serghides, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 10 October 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 37717/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vladimir Nikolayevich Dudchenko (“the applicant”), on 1 September 2005. 2.     The Russian Government (“the Government”) were represented by Mr   G.   Matyushkin,   Representative of the Russian Federation at the European Court of Human Rights, and then by his successor in that office, Mr   M.   Galperin. 3.     Referring to Articles 3, 5, 6 and 8 of the Convention, the applicant alleged, in particular, that the conditions of his detention and transport had been inadequate, that the length of this detention had been excessive and unjustified, that the length of the criminal proceedings had also been excessive, that the domestic authorities had violated his right to legal assistance of his own choosing, and that he had been subjected to covert surveillance in breach of the right to respect for his private life and correspondence. 4.     On 26 February 2010 the above complaints were communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1975 and lives in Murmansk. A.     Criminal proceedings against the applicant 6.     On 23 December 2003 the Murmansk regional prosecutor’s office initiated criminal proceedings against the applicant, who was suspected of leadership of a criminal armed gang. According to the authorities, the applicant, as the leader of the gang, had planned and committed several offences, namely aggravated kidnapping, assault, aggravated robbery and extortion, in Murmansk and Moscow. 7 .     On 23 December 2003 the Murmansk Regional Court authorised the interception and recording of the applicant’s telephone communications on his mobile telephone, number ...-15. The surveillance authorisation read in its entirety as follows: “[The police] are investigating [a case] against a criminal gang involved in robberies and the extortion of money and personal belongings from citizens in Murmansk and other Russian regions. [The applicant] is the leader of the gang. [M.] and [Z.] are members of that gang. According to intelligence information, these people are planning to commit aggravated extortion from Murmansk businessmen. Operational-search measures have revealed that [the applicant] uses mobile phone number ...-15, registered as belonging to [M.]. In view of the above and given that it seems impossible to obtain the information necessary to expose [the applicant’s] unlawful activities by overt investigation, the court, on the basis of Article 23 of the Russian Constitution and Article 186 § 2 of [the Code of Criminal Procedure] decides to authorise for 180 days the interception of [the applicant’s] telephone communications on his mobile telephone number ...-15.” 8.     On 24 and 25 December 2003 the police intercepted the applicant’s conversations with an accomplice, M. 9.     On 25 December 2003 two of the applicant’s accomplices, M. and S., were arrested. The applicant went into hiding. 10.     On the same day, 25 December 2003, at the applicant’s request his brother retained G. as the applicant’s legal representative. The legal services agreement stated that G. was to consult and defend the applicant while his name was on the police’s wanted persons list in connection with charges that were not yet known to him. If the applicant were to be arrested by the police, an additional agreement would be signed between G. and the applicant. There is no evidence that the police or the investigator were informed about that agreement. 11 .     On 26 December 2003 the Murmansk Regional Court authorised the interception and recording of the applicant’s telephone communications on his mobile telephone number ...-49. The surveillance authorisation read in its entirety as follows: “[The police] have intelligence information about a criminal gang involved in robberies and the extortion of money and personal belongings from citizens in Murmansk and other Russian regions. [The applicant] is the leader of the gang. Operational-search measures have revealed that [the applicant] uses mobile phone number ...-49. In view of the above and given that it seems impossible to obtain the information necessary to expose [the applicant’s] unlawful activities by overt investigation, the court, on the basis of Article 23 of the Russian Constitution and Article 186 § 2 of [the Code of Criminal Procedure] decides to authorise for 180 days the interception of [the applicant’s] telephone communications on his mobile telephone number ...-49.” 12.     On 26 and 27 December 2003 the police intercepted conversations between the applicant and G. 13.     On 27 December 2003 the applicant was arrested. 14.     On 28 December 2003 G. informed the investigator that he was the applicant’s defence counsel by virtue of instruction no.   1062 of the Murmansk Regional Bar Association (“the Bar Association”). He was formally admitted ( допущен ) as counsel for the applicant. 15.     On 5 January 2004 the applicant was charged with aggravated robbery, assault, kidnapping and extortion, committed by an organised criminal group. S. and M. were also charged with the same criminal offences. 16.     At the beginning of August 2004 the investigator informed G. that his presence was required during investigative procedures involving the applicant. On 23 August 2004 the investigator was informed by the Bar Association that G. was on annual leave until 4 October 2004. 17.     On 24 August 2004 the investigator appointed legal aid counsel for the applicant, noting that he had refused to choose replacement counsel and had insisted on being represented by G. 18.     On 30 August 2004 the investigator decided to remove G. as counsel for the applicant, finding that it was necessary to question him about his telephone conversations with the applicant on 26 and 27   December 2003. He noted that at the time, G. had not yet been the applicant’s counsel. However, well aware that the applicant had committed serious criminal offences, G. had advised him what to do. In particular, he had told the applicant that money was needed, which could possibly mean that G. had intended to bribe a police official. He had also informed him about the course of the criminal proceedings, which had become known to him as at the time he had been representing the applicant’s accomplices, S. and M. When the police had tried to force the applicant’s door, the applicant had summoned G., who had said that he could not come and offered to send another lawyer. He had then advised the applicant to try to avoid arrest and, if that was not possible, to destroy his telephone and the SIM card, and to remain silent when questioned. In the investigator’s opinion, by giving such advice, G. had been trying to hide his connections with the applicant and his knowledge of the criminal offences committed by him. Given that at the material time G. had not been formally admitted as the applicant’s counsel, he should be considered as having advised him in his capacity as a simple citizen. He should therefore be called as a witness in the criminal proceedings against the applicant. 19.     On 11 October 2004 the criminal case against the applicant and his accomplices was transferred to the Murmansk Regional Court for trial. The criminal case file comprised twelve volumes; five criminal cases were joined into one criminal case against the applicant and his accomplices. 20.     A preliminary hearing was held on 21 and 22 October 2004. 21.     The trial started on 3 November 2004. The applicant asked the court for permission for his brother, a civil lawyer working at a company which sold car spare parts, to act as his defence counsel. The court rejected his request, stating that the applicant’s brother was not qualified to participate as defence counsel in criminal proceedings, that he did not have the relevant practical experience, and that the applicant was already represented by legal aid counsel. 22.     On 4 November 2004 the applicant requested that legal aid counsel assigned to his case be removed for failure to provide adequate legal assistance. The court rejected his request. The applicant then requested that AM. be admitted as his defence counsel instead of the legal aid lawyer. The judge granted that request and AM. represented the applicant throughout the remainder of the criminal proceedings. The trial was adjourned until 15   November 2004 to let AM. study the case file. 23.     On 15 November 2004 the hearing was again postponed, until 22   November 2004, owing to the failure of one of the co-accused to appear due to illness. 24.     Further hearings were held between 22 November and 9   December 2004. 25.     On 22 November 2004 the applicant challenged the admissibility as evidence of transcripts of his telephone conversations with G. on 26   and 27   December 2003. He argued that G. had been his counsel as from 25   December 2003, as confirmed by the legal services agreement of that date and by relevant payment invoices. The conversations in question were therefore protected by legal professional privilege and their transcripts could not be used in evidence in criminal proceedings. 26.     On 30 November 2004 the Murmansk Regional Court found that the legal services agreement of 25   December 2003 stated that G. was to provide the applicant with legal assistance in the framework of criminal proceedings, without clearly identifying the criminal proceedings to which it related. The investigator had not been informed about that agreement. G. had not been formally admitted as the applicant’s counsel in the present criminal proceedings until 28 December 2003 when he had shown the investigator the relevant instruction by the Bar Association. The Regional Court found it relevant that during the conversations intercepted by the police, G. had advised the applicant to remain in hiding and to destroy the evidence. Moreover, having been present, as their counsel, at S.’s and M.’s questioning after their arrest, G. had informed the applicant about their statements to the investigator. When summoned by the applicant to assist him at the time of his arrest, he had refused to come and had offered to send another lawyer. That gave reasons to doubt that G. had been representing the applicant at the time in the present criminal proceedings. The investigator had subsequently removed G.   as counsel for the applicant. G. had not, however, been called to testify against the applicant in breach of legal professional privilege. Given that the applicant’s conversations with G. intercepted by the police contained information about the applicant’s criminal activities, they were not subject to legal professional privilege and their transcripts were admissible as evidence. 27.     On 9 December 2004 the court ordered a graphological expert report and for that reason adjourned the trial until 5 April 2005. 28.     On 4 April 2005 the applicant lodged an action before the Oktyabrskiy District Court of Murmansk, challenging the investigator’s decision of 30 August 2004 to remove G. as his counsel. On 6 June 2005 the Oktyabrskiy District Court dismissed that complaint as inadmissible, finding that it could not be examined once the investigation had been completed. The applicant could raise the complaint before the trial court. 29.     Meanwhile, further hearings were held on 5, 25 and 27 April and 5   and 12   May 2005. 30.     On 19 May 2005 the court ordered a complex psychological expert examination of one of the co-accused and adjourned the trial pending the expert examination report. A further complex psychological examination was ordered on 4   July 2005 and the trial was again adjourned until 7   October 2005. 31.     On 7 October 2005 the trial was adjourned because the court ordered that two prosecution witnesses who had testified against S. and who were detained in Moscow be transported to Murmansk for a cross ‑ examination. 32.     The trial remained adjourned between 7 October 2005 and 6   March 2006 while awaiting the transfer of the prosecution witnesses, who at the time were on trial in a criminal case in Moscow. They were transferred to Murmansk on 3 March 2006, after their conviction of 7   October 2005 had been upheld on appeal on 26 December 2005. 33.     On 29 December 2005 the applicant challenged the admissibility as evidence of the transcripts of his telephone conversations with M. on 24 and 25 December 2003 and with G. on 26 and 27 December 2003. He claimed, in particular, that the transcripts had been obtained unlawfully. 34.     The trial was resumed on 6 March 2006. Hearings were held on 16   March, 6, 7, 13 and 20 April 2006. 35.     During the trial the court examined numerous pieces of evidence, including three expert reports and the statements of six victims and twenty ‑ four witnesses from Murmansk and Moscow. 36.     On 12 May 2006 the Regional Court found the applicant guilty as charged and sentenced him to thirteen years’ imprisonment. It relied on the transcripts of the applicant’s telephone conversations with G. and M., among other evidence, observing that the interception of the applicant’s telephone communications had been authorised by a court. Having analysed the transcripts of the applicant’s telephone conversations with G., it held as follows: “The lawyer had not been formally admitted to provide legal assistance to [the applicant] at the time [when the interception had taken place]. His actions were considered by the investigator to be unlawful and served as a basis for the decision to remove [G.] as counsel for [the applicant] and for considering the question of opening criminal proceedings [against G.]. The court does not have any reason to believe that the information obtained as a result of [intercepting the applicant’s] telephone communications with [G.] cannot be used as evidence, given that the information in question has not become known to [G.] as a result of providing legal assistance to [the applicant].” 37.     The applicant appealed against the conviction, claiming that the Regional Court had erred in its assessment of the evidence, that the transcripts of his telephone conversations with his co-defendant M. and counsel G. had been unlawfully used as evidence in the criminal proceedings, that G. had been unlawfully removed as counsel from his case, and that the authorities had refused to allow his brother to act as his legal representative. 38.     On 18 December 2006 the Supreme Court of the Russian Federation upheld the conviction. It held, in particular, that the transcripts of the applicant’s telephone conversations with M. and G. had been correctly admitted as evidence. It further observed that the applicant’s allegations of violations of his right to defence during the preliminary investigation had been examined by the first-instance court and had been rejected as unsubstantiated. B.     The applicant’s detention pending investigation and trial 39.     The applicant was arrested on 27 December 2003. 40.     On 29 December 2003 the Murmansk Regional Court remanded the applicant in custody. It held that he was suspected of particularly serious offences, did not have a permanent job, and that his assertions that he owned a family business were unconvincing. There were therefore sufficient reasons to believe that he might abscond, obstruct the course of justice, and continue his criminal activities. 41.     On 24 February and 18 June 2004 the Regional Court ordered extensions of the applicant’s detention, citing the need for further investigation, the gravity of the charges and the risks of the applicant absconding, putting pressure on witnesses and obstructing the course of justice. There were no factors relating to the applicant’s character, state of health, family or other circumstances which would warrant release. The applicant did not appeal against those extension orders. 42.     On 11 October 2004 the criminal case file was transferred to the Regional Court for trial.   On 22 October 2004 the Regional Court ordered the applicant’s and his co-defendants’ detention during trial, referring to the gravity of the charges and the lack of permanent employment “at the time of the commission of the crimes”. It considered that the grounds which had served as the basis for the preventive measure remained valid. The applicant did not appeal. 43.     On 5 April, 4 July, 7 October and 29 December 2005 and 7 April 2006 the Regional Court extended the applicant’s and his co ‑ defendants’ detention, finding that the grounds which had served as the basis for the preventive measure remained valid and that there were therefore no reasons to change it. The trial could not proceed for objective reasons as it was necessary to wait for the results of a psychological expert examination of S. and for the transfer for questioning of two prosecution witnesses against S. 44.     The applicant appealed against the above extension orders to the Supreme Court. He submitted that he had been permanently residing in Murmansk, that he had been working in the family business, that he had no previous convictions and that he had no intention of absconding from the authorities. The authorities had failed to substantiate their allegations that he might abscond or continue with his criminal activity. As regards the risk that he might put pressure on witnesses, it was no longer relevant as all the witnesses had already been questioned by the trial court. According to the applicant, the extension of his detention had been based solely on the gravity of the charges against him. The trial had been adjourned for reasons which were not related to his personal situation, but in order to carry out expert psychological examinations of one of the co-accused and to ensure the transfer from Moscow of two prosecution witnesses who were to give evidence against that same co-accused. He asked to be released on bail or on his father’s personal guarantee. 45.     On 11 August, 9 November and 15 December 2005 and 30   March 2006 the Supreme Court upheld the above extension orders on appeal, referring to the gravity of the charges and the risks of the applicant absconding or putting pressure on witnesses. The fact that the witnesses had already been questioned was irrelevant because the applicant might still put pressure on them or otherwise obstruct the trial. C.     The conditions of the applicant’s detention 1.     The Government 46.     The applicant was held as follows: in remand prison no. IZ-51/1 (SIZO-1) in Murmansk from 30 December 2003 to 21 May 2006; in correctional facility no. IK-16 in Murmashi, Murmansk Region, in a special wing with the material conditions of detention of a remand prison ( ПФРСИ – помещение, функционирующее в режиме следственного изолятора ) from 21   May to 9 October 2006; in remand prison no. IZ-35/2 in Vologda from 12 to 17   October 2006; and in remand prison no. IZ-77/3 in Moscow from 18 October 2006 to 24   January 2007. 47.     The Government submitted that it was impossible to provide original documentation concerning the conditions of the applicant’s detention in remand prison no. IZ-51/1 (SIZO-1) in Murmansk because all the official records had been destroyed after the expiry of the statutory period for their storage. In respect of that detention facility they submitted only statements and reports prepared by the prison authorities in 2010. They also submitted copies of the prison population register for the entire periods of the applicant’s detention in correctional facility no. IK-16 in Murmashi and in remand prison no. IZ-35/2 in Vologda, and selected pages from the prison population register for the period of detention in remand prison no. IZ-77/3 in Moscow. 48.     The Government submitted the following information about the applicant’s detention, which was based on the above-mentioned documents:   Detention facility Cell No. Period of detention Surface area (in square metres) Number of inmates Number of beds remand prison IZ-51/1 (SIZO-1) in Murmansk   331 30 December 2003 to 5   January 2004 13.1   3   417 5 January to 6 February 2004 12.8   3   315 6-16 February 2004 12.9   3   312 16 February to 14 April 2004 13.3   3   315 14-21 April 2004 12.9   3   423 21 April to 6 December 2004 12.9   3   210 6-10 December 2004 12.8   3   203 10 December 2004 to 28   July 2005 24.4   6   212 28 July to 10 August 2005 23.6   5   307 10-11 August 2005 13.3   3   417 11-16 August 2005 12.8   3   219 16-19 August 2005 13.4   3   417 19-30 August 2005 12.8   3   307 30 August to 17 October 2005 13.3   3   403 17 October to 24   November 2005 16.6   4   406 24 November 2005 to 6 March 2006 22.7   5   215 6-9 March 2006 12.8   3   301 9-17 March 2006 3.6   1   405 17 March to 21 May 2006 22.7   5 correctional facility IK-16 in Murmashi, Murmansk Region   10 21 May to 20 July 2006 24.9 5-6 6   9 21 July to 9 October 2006 26.2 4-6 6 IZ-35/2 in Vologda 198 12-17 October 2006 49.3 14-30   remand prison IZ-77/3 in Moscow 434 18 October to 24   January 2007 18.3 6-8     49.     The Government asserted that in all the cells where the applicant had been detained between 2003 and 2007, the number of inmates had not exceeded the number of beds and that at all times while in detention the applicant had been provided with an individual sleeping place. At the same time, the Government submitted as follows: “... during the applicant’s detention the sanitary norm for space per inmate was not always complied with. However, it happened only occasionally ... and the prosecutor’s office demanded that these infractions be eliminated ...” 50.     Relying on the statements and reports prepared by the prison authorities in 2010, the Government further submitted that the applicant had been provided with bed sheets and cutlery. The cells were cleaned daily by the inmates and the administration of the penal institutions carried out a sanitary treatment of the premises every month. 51.     All cells were equipped with wash basins supplying cold water; hot water was available for personal and household needs. In addition, the inmates were allowed to use their own kettles and water heaters. 52.     At all times in all the remand prisons, the applicant and the other inmates were allowed to take a fifteen-minute shower once a week; their linen was changed weekly. 53.     The applicant and other inmates were allowed to take one hour’s daily exercise in specially equipped yards. 2.     The applicant 54.     According to the applicant, remand prison no. IZ-51/1 (SIZO-1) in Murmansk had been severely overcrowded and the space available to him had been below the domestic standards. The applicant contested the accuracy of the data submitted by the Government about the designated number of bunk beds within the cells. For instance, in cell no. 423 the actual number of bunk beds had been eight and not three as submitted by the Government, as could be seen from the photographs he had submitted to the Court. Cell no. 406 had seven sleeping bunks and housed up to nine inmates. 55 .     In reply to the applicant’s complaints about poor conditions of detention, the Murmansk regional prosecutor’s office stated, on 14   November 2005, as follows: “... the applicant’s complaints ... that the conditions of detention in SIZO-1 were not fully compatible with the sanitary regulations prescribed by the Federal Law on pre ‑ trial detention ... that the minimum individual space prescribed by the Law (4   sq.   m per person) was not always complied with, that the premises needed repair, that the walls in some of the cells were stained with mould and crumbling, that the plumbing was often out of order, that not all the cells were equipped with a sufficient number of shelves and TV sets, that broken glass in the windows was not replaced promptly and that there were no refrigerators – [all these complaints] reflect the reality. These deficiencies were noted by the prosecutor’s office during their inspection of SIZO-1.” 56 .     On 25 April 2006 the Murmansk regional prosecutor’s office stated: “... in 2005-06 the number of detainees in SIZO-1 frequently exceeded the prescribed limits. For these reasons it was not always possible to comply with the sanitary regulations (4 sq. m per inmate). For the same reasons the requirements concerning the separate detention of different categories of detainees were sometimes not complied with ...” 57.     As regards correctional facility no. IK-16 in Murmashi, the applicant stated that during his stay there he had been detained in inadequate conditions. The cells had been overcrowded. The space available to him throughout the detention period had been below the domestic standards. In particular, he had shared a cell measuring 20 sq. m with five other detainees. 58.     On 28 September 2006 the applicant complained to the Murmansk Regional Department for the Execution of Sentences of inadequate conditions of detention in IK-16. In particular, he complained of poor nutrition, overcrowding, a lack of newspapers and television sets, and of the authorities’ refusal to make copies of documents at inmates’ requests. He received no reply. 59.     Furthermore, as regards remand prison no. IZ-35/2 in Vologda, the applicant stated that the quality of the food in the prison had been extremely poor. He had been detained with thirty-six other detainees in a cell measuring 50   sq.   m. The cell had been infested with cockroaches, bedbugs and rats. The detainees had slept on bunk beds. 60.     Lastly, as regards remand prison no. IZ-77/3 in Moscow, according to the applicant, he had been held in cell   434, which measured 13 sq. m, with seven other detainees. The inmates had slept on bunk beds. There had been a table measuring 1 m by 0.3 m but no benches or chairs to sit on. The cell had been swarming with insects. The inmates had been allowed to take exercise only in groups. D.     Conditions of the applicant’s transfer between detention facilities 1.     The applicant 61.     From 9 to 12   October 2006 the applicant was transferred by train from Murmansk to Vologda. He was given no food. He received his first meal on 13   October 2006. 62.     On 17 and 18 October 2006 the applicant was transferred by train from Vologda to Moscow. 63.     From 24 January to 9 February 2007, on the way from Moscow to Murmansk, between St Petersburg and Murmansk, the applicant was transported in cramped conditions in a compartment with up to sixteen other inmates, some of whom were suffering from tuberculosis. 2.     The Government 64.     As regards the conditions of the applicant’s transportation between Murmansk and Vologda from 9 to 12 October 2006, the applicant was transported in a compartment with other inmates, none of whom were suffering from tuberculosis. He was transferred from Vologda railway station to the local remand prison IZ ‑ 35/2 in a special vehicle separately from other inmates. 65.     When the applicant was transferred from Vologda railway station to Moscow on 17 and 18 October 2006, he was not transported with inmates who were suffering from tuberculosis. 66.     When the applicant was transferred from Moscow to Murmansk between 24 January and 9 February 2007, he was transported first alone in the railway compartment, then from St Petersburg onwards he was transported with other inmates, none of whom were suffering from tuberculosis. 67.     During the transfers the applicant was duly provided with dry food rations; he was given permission to use hot water and the toilet. 68.     The applicant did not lodge any complaints about the conditions of his transportation between Murmansk and Moscow. He did not apply for medical assistance, nor did he complain about the state of his health. 69.     In their submission the Government neither specified the number of inmates transported with the applicant, nor the size of the compartments in which they had travelled. Nor did they submit any copies of documents regarding that part of the applicant’s complaints, including the distribution of dry rations for the trip. II.     RELEVANT DOMESTIC LAW A.     Conditions of detention and preventive measures in the criminal proceedings 70.     For a summary of the relevant domestic law concerning conditions of detention and preventive measures, including remand in custody, see Idalov v.   Russia ([GC], no. 5826/03, §§ 70-73, 22 May 2012), and Zherebin v.   Russia (no. 51445/09, §§ 16-26, 24 March 2016). B.     Interception of communications 71.     The Constitution guarantees to everyone the right to respect for his private life, personal and family secrets and the right to defend his honour and reputation (Article 23 § 1). It further guarantees the right to respect for correspondence, telephone, postal, telegraph and other communications. That right may be restricted only on the basis of a court order (Article 23 §   2). 72.     The Russian Code of Criminal Procedure of 2001 (“the CCrP”) provides that investigative measures involving a search in a person’s home or interception of his or her telephone calls and other communications are subject to prior judicial authorisation. A request to search a person’s home or intercept his or her communications must be submitted by an investigator with a prosecutor’s approval and must be examined by a single judge within twenty-four hours. The prosecutor and the investigator are entitled to attend. The judge examining the request decides whether to authorise the requested measure, or to refuse authorisation, giving reasons (Article 165 of the CCrP). 73.     Interception of telephone and other communications of a suspect, an accused or other person may be authorised by a court if there are reasons to believe that they may contain information relevant for the criminal case in respect of a serious offence or an especially serious criminal offence (Article   186 § 1 of the CCrP, as in force at the material time). If there is a risk of violence, extortion or other criminal acts against the victim, a witness or their close relations, interception of telephone and other communications may be carried out at their written request or, in the absence of such request, on the basis of judicial authorisation (Article 186 §   2 of the CCrP). 74.     A request for judicial authorisation to intercept communications must clearly mention the following: (1) the criminal case to which the request is related; (2) the grounds for conducting the requested measures; (3) the family name, the first name and the patronymic of the person whose communications are to be intercepted; (4) the duration of the requested measure; and (5) the State agency that will perform the interception (Article   186 § 3 of the CCrP). 75.     The judicial decision authorising interception of communications must be forwarded by the investigator to the State agency charged with its implementation. The interception of communications may be authorised for a period not exceeding six months, and is discontinued by the investigator when it is no longer necessary. It must in any case be discontinued when the investigation has been completed (Article 186 §§ 4 and 5 of the CCrP). C.     Right to legal assistance 76.     The CCrP provides that advocates (qualified lawyers who are members of the Bar) may act as counsel in criminal proceedings. At the defendant’s request the judge may allow a close relative or any other person to represent the defendant along with the advocate (Article 49 §   2 of the CCrP). 77.     To be admitted to act as counsel in criminal proceedings, an advocate must produce a practising certificate ( удостоверение адвоката ) and an instruction by a Bar association to act as counsel in a specific case ( ордер ) (Article 49 § 4 of the CCrP). 78.     Counsel may participate in the proceedings from the date when criminal proceedings are opened against a specific person, when charges are brought, when the person is arrested or detained, or when any investigative measures capable of affecting the person’s rights are taken (Article 49 § 3 of the CCrP). 79 .     Counsel may be removed by the investigator or the court in the following cases: (i) he or she previously participated in the current criminal proceedings as a judge, prosecutor, investigator, court stenographer, witness, expert, translator or attesting witness; (ii) he or she is a close relative of the judge, prosecutor, investigator or court stenographer who has earlier participated in the current criminal proceedings, or a close relative of a person whose interests contradict the interests of the party who is retaining counsel; or (iii) he or she previously represented a person whose interests contradict the interests of the party who is retaining counsel (Article 72 of the CCrP). 80.     The Federal Law on Advocacy of 31   May 2002 (no.   63-FZ, hereafter “the Advocates Act”, as in force at the material time) provides that an advocate represents his client on the basis of a legal services agreement between them (section 25 of the Advocates Act). In cases provided for by federal law, an advocate must obtain an instruction from a Bar association to represent a client in a specific case. In other cases an advocate represents his client on the basis of a power of attorney (section 6(2) of the Advocates Act). 81.     An advocate may not accept an obviously unlawful assignment from a client (section 6(4)). 82 .     Section 8 of the Advocates Act provides as follows: “1.     Any information relating to legal representation of a client by an advocate falls within legal professional privilege. 2.     An advocate cannot be questioned as a witness concerning matters which have become known to him as a result of representing the client or as a result of an application for legal representation by a prospective client. 3.     Operational search measures and investigative measures in respect of an advocate (including in residential or working premises used by an advocate for his professional activities) are allowed only on the basis of a court order. Information, objects and documents obtained as a result of operational search measures and investigative measures (even if they are performed after the advocate’s practising certificate has been suspended or annulled) may be used as evidence in criminal proceedings only if they are not included in the advocate’s case files concerning his clients. These limitations do not apply to weapons of crime and objects with limited or prohibited circulation as prescribed by the law of the Russian Federation.” 83 .     In its decision no. 128-О of 6 July 2000 the Constitutional Court held that legal professional privilege covered all information which had become known to the advocate as a result of representing the client, including any information communicated by the client before the advocate had been formally admitted as counsel in criminal proceedings. III.     RELEVANT INTERNATIONAL MATERIAL 84.     Recommendation Rec (2000)21 of the Committee of Ministers of the Council of Europe to member States on the freedom of exercise of the profession of lawyer provides, inter alia , as follows: “Principle I - General principles on the freedom of exercise of the profession of lawyer ... 6.     All necessary measures should be taken to ensure the respect of the confidentiality of the lawyer-client relationship. Exceptions to this principle should be allowed only if compatible with the rule of law.” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 85.     Referring to Article 8 of the Convention, the applicant complained that the authorities had violated his right to respect for his private life by tapping his telephone conversations in December 2003, including conversations with his counsel and an accomplice. Article 8 of the Convention provides as follows: “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well ‑ being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A.     Admissibility 86.     The Court considers that the applicant’s complaint under Article   8 of the Convention is not manifestly ill-founded within the meaning of Article   35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions 87.     The Government submitted that the interception of the applicant’s telephone communications had been ordered by a court as required by law. It transpired from the court orders that the police had intelligence information about the applicant being the leader of a criminal gang. The transcripts of his telephone conversations had been admitted as evidence in the criminal proceedings against him. The tapping of his telephone had therefore been lawful and proportionate to the legitimate aim of protecting public safety and the rights and freedoms of others. 88.     The applicant reiterated his complaint. He submitted, in particular, that the telephone tapping had been in breach of section 8 of the Advocates Act. The telephone conversations with his counsel on 26   and 27 December 2003 should have been protected by legal professional privilege, taking into account that G. had been retained as his legal representative on 25   December 2003. 2.     The Court’s assessment 89.     The Court accepts, and it is not disputed by the parties, that the interception of the applicant’s telephone communications amounted to an interference with the exercise of his right to respect for his “private life” and “correspondence”, as set out in Article   8 of the Convention. 90.     The Court reiterates that such interference will give rise to a breach of Article   8 of the Convention unless it can be shown that it was “in accordance with law”, pursued one or more legitimate aims as defined in the second paragraph and was “necessary in a democratic society” to achieve those aims (see, among other authorities, Goranova ‑ Karaeneva v. Bulgaria , no. 12739/05, § 45, 8 March 2011). 91.     The wording “in accordance with the law” requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus meet quality requirements: it must be accessible to the person concerned and foreseeable as to its effects (see Roman Zakharov v. Russia [GC], no. 47143/06, § 228, ECHR 2015). 92 .     An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient”. While it is for the national authorities to make the initial assessment in all these respects, the final evaluation of whether the interference is necessary remains subject to review by the Court for conformity with the requirements of the Convention (see S. and Marper v.   the United Kingdom [GC], nos. 30562/04 and 30566/04, § 101, ECHR   2008 ) . In the context of covert surveillance, the assessment depends on all the circumstances of the case, such as the nature, scope and duration of the surveillance measures, the grounds for ordering them, the authorities competent to authorise, carry out and supervise them, and the kind of remedy provided by the national law. The Court has to determine whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the “interference” to what is “necessary in a democratic society” (see Roman Zakharov , cited above, §   232). (a)     Interception of telephone conversations with an accomplice on the basis of the judicial authorisation of 23 December 2003 93.     The Court observes that on 24 and 25 December 2003 the police intercepted the applicant’s conversations with one of his accomplices. Judicial authorisation for the interception had been given on 23   December 2003. 94.     As regards the question of lawfulness of the interception, it has not been disputed by the parties that the covert surveillance of the applicant had a basis in domestic law, namely in the relevant provisions of the CCrP. 95.     Although the applicant has not complained that the quality of the domestic law fell short of the Convention standards, when examining whether the interference complained of was “in accordance with the law”, the Court must assess the quality of the relevant domestic law in relation to the requirements of the fundamental principle of the rule of law (see Dragojević v. Croatia , no. 68955/11, §   86, 15   January 2015). The Court notes in this connection that in the case of Roman Zakharov v. Russia it has already found that Russian law does not meet the “quality of law” requirement because the legal provisions governing the interception of communications do not provide for adequate and effective guarantees against arbitrariness and the risk of abuse. They are therefore incapable of keeping the “interference” to what is “necessary in a democratic society” (see Roman Zakharov, cited above, §§   302-04). In the present case, however, where the applicant’s complaints were based on specific and undisputed instances of covert surveillance, the Court’s assessment of the “quality of law”, although it necessarily entails some degree of abstraction, cannot be of the same level of generality as in cases such as Roman Zakharov , which concern general complaints about the law permitting covert surveillance and in which the Court must, of necessity and by way of exception to its normal approach, carry out a completely abstract assessment of such law. In cases arising from individual applications, the Court must as a rule focus its attention not on the law as such but on the manner in which it was applied to the applicant in the particular circumstances (see Goranova-Karaeneva, cited above, § 48). 96.     In the Roman Zakharov case the Court has found, in particular, that the judicial authorisation procedures provided for by Russian law are not capable of ensuring that covert surveillance measures are not ordered haphazardly, irregularly or without due and proper consideration. In particular, the CCrP does not instruct judges ordering covert surveillance measures to verify the existence of a “reasonable suspicion” against the person concerned or to apply the “necessity” and “proportionality” tests. The Court has also found it established, on the basis of evidence submitted by the parties, that in their everyday practice the Russian courts do not verify whether there is a “reasonable suspicion” against the person concerned and do not apply the “necessity” and “proportionality” tests (see Roman   Zakharov , cited above, §§ 260-67). 97.     There is no indication in the case file that the Russian courts acted differently in the present case. Although the court noted, w