CEDH · CASELAW;COMMUNICATEDCASES;ENG — 28 janvier 2020

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .sDAD2B73A { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .sFBC99493 { font-style:italic } .s76334B44 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .s58699FB5 { margin-top:14pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } Communicated on 28 January 2020 Published on 17 February 2020   THIRD SECTION Applications nos. 29240/19 and 42420/19 Denis Umarovich MARUSHENKO against Russia and Yelena Viktorovna NIKOLAYEVA and Yuriy Anatolyevich NIKOLAYEV against Russia lodged on 17 May 2019 and 23 July 2019 respectively STATEMENT OF FACTS 1.     The applicant in the first case, Mr Denis Umarovich Marushenko, is a Russian national, who was born in 1987 and lives in Ilanskiy, the Krasnoyarsk Region. 2.     The applicants in the second case, Ms Yelena Viktorovna Nikolayeva and Mr Yuriy Anatolyevich Nikolayev, are Russian nationals, who were born in 1964 and 1965 respectively and live in Valday, the Novgorod Region. They are represented before the Court by Mr I.A. Nikolayev, a lawyer practising in Valday. 3.     The facts of the case, as submitted by the applicants, may be summarised as follows. Application no. 29240/19, Marushenko v. Russia 4.     Investigating authorities initiated a criminal investigation against the applicant’s sister. They suspected her of fraudulent failure to ensure enforcement of a final court judgment issued against the housing cooperative which she headed. The applicant also worked for that housing cooperative as its in-house lawyer. Search of the applicant’s flat based on a court search warrant 5.     On 25   November 2017 the Sovetskiy District Court of the Krasnoyarsk City (“the Sovetskiy District Court”) granted the investigator’s application to authorise a search of the applicant’s flat. The court considered that the search warrant application complied with the criminal law procedural requirements and that objects and documents related to financial activities of the housing cooperative could be located at the applicant’s flat given that he was the suspect’s brother and the in-house lawyer of the cooperative. 6.     On 7   December 2017 the search of the applicant’s flat was carried out. Finding of unlawfulness of the court search warrant on appeal and of the investigator’s actions under Article 125 of the CCrP 7.     On 25   January 2018 the Krasnoyarsk Regional Court, acting on the applicant’s appeal, quashed the search warrant of 25   November 2017 due to a procedural irregularity and rejected the investigator’s application for authorisation of the search. 8.     The applicant then filed a complaint under Article 125 of the Code of Criminal Procedure (“CCrP”) about unlawful actions of the investigator in respect of the search of his flat. On 5   April 2018 the Sovetskiy District Court declared the investigator’s actions unlawful referring to the finding of the unlawfulness of the search warrant of 25   November 2017. Civil action for compensation 9.     The applicant brought a civil action seeking 150,000 roubles (“RUB”) (about 1,900 euros (“EUR”)) in respect of non-pecuniary damage caused by the unlawful search of his flat. He also claimed compensation of RUB   70,000 (about EUR 900) that he had spent as legal expenses for his representation during the proceedings on the unlawfulness of the search and actions of the authorities who had carried out the search. The applicant’s claims for legal expenses were supported by payment receipts. 10.     On 6   September 2018 the Sovetskiy District Court partly granted his claims. Relying on the position of the Constitutional Court of Russia and of that of the Court, it held that everyone whose rights and freedoms were violated, should have an effective remedy before a national authority even if that violation had been committed by persons acting in the official capacity. Referring to the Constitutional Court’s ruling of 23 March 1999 N 5-П, the Sovetskiy District Court reiterated that a search of home is an investigative action which considerably restricts the constitutional right to respect for home and private life. It further referred to the Constitutional Court’s decision of 8   April 2010 N 524-O-П where the latter had confirmed that under Russian legislation a person may not only challenge the search warrant and actions of the investigating authorities during the search, but also has the right to compensation for non-pecuniary damage caused by those unlawful acts. The Sovetskiy District Court found that on 25   January 2018 the court search warrant of 25   November 2017 had been quashed and, also, that on 5   April 2018 the investigator’s actions had been declared unlawful. The court concluded that a search of home and seizure of possessions based on an unlawful court order had undoubtedly caused to the applicant irretrievable moral suffering. His claims for non-pecuniary damages were therefore well-founded. The Sovetkiy District Court awarded the applicant RUB 1,000 (about EUR 13) considering that granting him a bigger sum would not correspond to the requirements of reasonableness and fairness. As for the legal expenses, the court found them “objectively necessary” to restore the applicant’s rights. Taking into account the principles of reasonableness and proportionality, the extent of the violated right and the payment documents the Sovetskiy District Court considered that the amounts claimed by the applicant were to be reduced to RUB 8,000 (about EUR 100). 11.     On 19   November 2018 the Krasnoyarsk Regional Court upheld the above judgment on appeal. On 6   March 2019 and 19   April 2019 the applicant’s cassation complaints were also rejected. Application no. 42420/19, Nikolayevy v. Russia 12.     Investigating authorities initiated a criminal case against unidentified people on the suspicion of forgery of a document of Company V. The second applicant worked as an in-house lawyer of Company   V. On 20   October 2016 the investigator took a decision to perform an “inspection of non-residential premises” in respect of the applicants’ house. That investigative measure under Russian law did not require a judicial authorisation. Finding of the unlawfulness of the investigator’s decision to inspect the applicants’ house under Article 125 of the CCrP 13.     On 29   December 2016 the second applicant brought a complaint under Article 125 of the CCrP about the investigator’s decision to inspect his house. 14.     On 12   January 2018 the Valdayskiy District Court of the Novgorod City declared unlawful the investigator’s decision to inspect the applicants’ house. It agreed that the house had been actually used by the applicants as their residence and, thus, had required a judicial authorisation to be searched, which the investigator had failed to obtain. On 15   March 2018 the Novgorod Regional Court upheld that judgment on appeal. Civil action for compensation 15.     The applicants sought in total RUB 140,000 (about EUR 1,900) in respect of non-pecuniary damage and RUB 252,000 (about EUR 3,500) of legal expenses related to the search of their house. On 26   June 2018 the Valdayskiy District Court partly granted the applicants’ claims. The court referred to the Constitutional Court’s decision of 8 April 2010 N 524-O-П where the latter confirmed that under Russian legislation a person may not only challenge the search warrant and actions of the investigating authorities during the search, but also has the right to compensation of non-pecuniary damage caused by those unlawful actions. The Valdayskiy District Court also relied on the Court’s case-law requirements to searches as reiterated in its judgment in the case of Smirnov v. Russia (no. 71362/01, 7 June 2007). It held that an unlawful search was an unacceptable interference with a person’s right to respect for home guaranteed by the Constitution and the Convention. As the unlawfulness of the investigator’s decision to inspect the applicants’ house had been established by the court judgment of 12   January 2018, the inspection based on that unlawful decision had violated the applicants’ right to inviolability of their home and private life. Therefore, their claims for non-pecuniary damages were well-founded. The Valdayskiy District Court finally held that it was reasonable and fair to award the first applicant RUB 20,000 (about EUR 275) and the second applicant RUB 25,000 (about EUR 345) in respect of non-pecuniary damage. Taking into account, among other things, the factual circumstances of the case, the extent of the right violated, the amount of the representative’s work, the court awarded in total RUB 39,000 (about EUR   530) for related legal representative’s services. 16.     On 3   October 2018 the Novgorod Regional Court upheld that judgment on appeal. On 14   January 2019 and 21   June 2019 the applicants’ cassation complaints were also refused. COMPLAINTS The applicants complain under Article 8 of the Convention about unlawful searches of their home. As their claims for compensation of non ‑ pecuniary damages and legal expenses were only partially granted, the applicants also complain under Article   13 in conjunction with Article 8 of the Convention that they had no effective remedies in respect of their grievances under Article 8 of the Convention. QUESTIONS TO THE PARTIES 1.     Did the applicants have at their disposal an effective domestic remedy (or a combination of remedies) for their complaints under Article 8 of the Convention, which they were required to exhaust in accordance with Article   35 §   1 of the Convention? In particular: (a)     Could an appeal complaint against a search warrant and/or a complaint under Article   125 of the CCrP about unlawful actions/decisions of the investigating authorities be considered an effective remedy capable of dealing with the substance of a complaint about an allegedly unlawful search and granting appropriate preventive or compensatory relief? (b)     Could a civil action be considered an effective remedy capable of dealing with the substance of a complaint about an allegedly unlawful search and granting appropriate preventive or compensatory relief? (c)     Could the above remedies in combination be considered an effective remedy?   2.     Depending on the answers to the previous questions the parties are requested to comment on whether the applicants in the present two cases have complied with the six-months’ time-limit given that their respective applications have been lodged outside of six months since the final court decisions on the lawfulness of searches or actions/decisions of the authorities, but within six months since the final court decisions on their civil claims for compensation.   3.     If the applicants had effective remedies in respect of their complaints about the searches of their homes and complied with the exhaustion and six-months requirements, can they still claim to be victims of the alleged violation of Article 8 of the Convention within the meaning of Article   34? In particular: (a)     Have the national authorities acknowledged, either expressly or in substance, the alleged breach of the Convention ( Scordino v. Italy (no. 1) [GC], no. 36813/97, §   180, ECHR 2006 ‑ V)? (b)     Do the applicants retain their victim status given the length of the proceedings related to the searches of their homes and the level of compensation awarded to them by the domestic courts (ibid., §   202)?   4.     As regards the searches of the applicants’ premises, was the interference with the applicants’ right to respect for their private life, home and correspondence “necessary in a democratic society” as required by Article 8 of the Convention?   5.     Did the applicants have at their disposal an effective domestic remedy (or a combination of remedies) for their complaints under Article 8 of the Convention, as required by Article 13 of the Convention?