Judgement 23503/15

Applicant type Legal person
Number of applicants 1
Application no. 23503/15 
Date  01/06/2023
Judges Krzysztof Wojtyczek, President,
 Lətif Hüseynov,
 Erik Wennerström
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason Not necessary (?prevention of crime?)
Type of privacy Locational privacy; informational privacy
Keywords Business premises
Facts of the caseThe Institute for Reporters’ Freedom and Safety Public Union was registered in 2006 and has its headquarters in Baku. It is a non-governmental organisation specialising in the protection of journalists.  On 22 April 2014 the Prosecutor General’s Office opened a criminal under Article 308.1 (abuse of power) and Article 313 (forgery by an official) of the Criminal Code in connection with alleged irregularities in the financial activities of a number of NGOs. On 7 August 2014 the Sabail District Court authorised the investigating authorities to search the applicant organisation’s office and seize a very broad range of documents and devices. On 8 August 2014 the search was carried out in two offices of the applicant organisation and laptops, computer system units, video cameras, photo cameras, other devices and equipment and documents. On 19 August 2014 the chairman of the applicant organisation, was charged under Articles 192.2.2 (illegal entrepreneurship), 213.2.2 (tax evasion) and 308.2 (abuse of power) of the Criminal Code, and an arrest warrant was issued later. The applicant organisation lodged a complaint under judicial supervision proceedings with the district court, but that court dismissed the complaint because the authorities had acted in accordance with domestic law and their actions were necessary in the interests of a thorough investigation of the case. The Court of Appeal upheld the first‑instance court’s judgment.
AnalysisThe Court reaffirms the position it first took in Stes Colas Est, namely that legal persons can also claim protection of their ‘home’ under Article 8 ECHR when their business premises is searched. Subsequently, the ECtHR points out that the applicant organisation was not a suspect in the criminal case. As to the charges against its chairman, they were brought after the search had been conducted in the applicant’s premises. When authorising the search of the applicant organisation’s office and the seizure of all legal and financial documents, the district court merely referred to the need to ensure a complete, comprehensive, and objective investigation. The Court considers that such general reasoning does not demonstrate that the national authorities examined the question whether the interference with the applicant organisation’s rights answered a pressing social need and was proportionate to the legitimate aims pursued. In addition, it finds that the terms of the search warrant were too broad and did not sufficiently specify the reason for the search or which items or documents relevant to the investigation were expected to be found and seized at the applicant organisation’s office. ‘The breadth and vagueness of the search warrant were reflected in the way in which it was executed, given that the investigating authorities seized electronic devices and documents belonging to the applicant organisation which were not clearly related to the investigation in respect of which the searches and seizures were conducted. The Court notes in particular that the appellate court did not give any indication as to the relevance to the investigation of the items seized from the applicant organisation and limited itself to an endorsement of the first‑instance court’s findings without addressing the applicant organisation’s particular complaints. (§13)’

This very short judgement is relevant for a number of points:
1. It seems as though the ECtHR increasingly takes into account which type of country it is dealing with. If it deals with a country, such as the recent cases against the Netherlands in which very meagre reasoning was provided for transferring data, it feels has a strong legal system and a practice in which the rule of law is respected, it seems more ready to ok conduct than when it deals with countries it feels are less meticulous in this respect. Some commentators argue that such is unfair, others point out that it is essential, because the level of protection offered to citizens ultimately depends both on the quality of the legal regime and on the living practice of governmental officials to uphold the rule of law.
2. The ECtHR does not reflect on the special importance of privacy and secrecy for reporters and the vital importance of a free press for a healthy democracy.
3. Though the ECtHR has developed the quality of law doctrine, under the requirement of prescribed by law, in which it sets standards against the arbitrary use of power, in this case, it chooses to deal with these issues under the question of necessity and the derived principle of proportionality.
4. The Court seems unclear itself what it wants to do in this case, and even in this very short judgement, there are at least two approaches it takes. On many points, it seems as though the Court’s main finding will be that the national authorities, in particular the domestic courts, have not adequately weighed and balanced the various interests at stake and effectively evaluated the proportionality of the measures. This would lead the ECtHR not so much to a substantive judgement, but rather to a procedural finding, namely that the quality of the national judgements was insufficient. Surprisingly, however, the ECtHR comes to a substantive conclusion itself, finding that the measures were not proportionate. ‘On the basis of the above, the Court concludes that the interference was not proportionate to the legitimate aim pursued (§14)’.
5. It seems that it is never clear to the Court what the general interest served by the interference really was in this case. Arguably, the real problem in this case is that the measures did not serve one of the interests mentioned in Article 8 § 2 is served. But although in a recent case against Hungary, the Court seemed willing at least marginally to reflect on this requirement, as it normally does, in this case, the Court rather deals with this point under the necessity requirement, concluding that because there were no or very limited interests served by the interference, such was not proportionate in relation to the harm caused to the applicant.
6. Although Article 18 ECHR wasn’t used by the Court for a very long time, in recent years, it has seen a revival. In this case, however, it is rejected, because the ECtHR points out that these concerns were not raised in the domestic proceedings, so that this point must be rejected for the non-exhaustion of domestic remedies. Although this is an understandable approach, four things should be considered. First, it is not unlikely that an organisation like that of applicant would be the target of abuse of power, especially in regimes that are prone to do so. Second, if the authorities did truly abuse their powers, and the legal system either condones or legitimises such conduct, it is questionable whether a claim to that end would have been effective in domestic proceedings. Third, it seems reasonable for parties to make arguments as to the substance of the matter in domestic proceedings; the argument as to the abuse of power in many cases is implicit in the substantive arguments. Fourth, a victim conviction that there was abuse of power can sometimes only emerge after the procedure as to the substance on domestic level has been finalised, for example because only then all the arguments by the government have become apparent or because the inability of domestic courts to adequately address the substantive issue can feed into the feeling that the regime is prone to abuse of power.
7. Finally, the Court finds that the claims under Article 11 ECHR and Article 1 of Protocol 1 can be dismissed because they have been adequately dealt with under Article 8 ECHR.
Other Article violation? No violation Article 11, 18 and Article 1 Protocol 1
Damage awarded that the respondent State is to pay the applicant organisation, within three months, EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
Documents Judgment