CASE OF KONSTANTIN MOSKALEV v. RUSSIA
Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Violation of Article 13+8-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for correspondence;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova
5. The applicant was born in 1982 and lives in the Krasnoyarsk region. 6. At the material time the applicant was a police officer with the Economic Crimes Department of the Department of the Interior of the Krasnoyarsk Region. 7. On 31 July 2008 a certain Mr P. complained to the internal security department of the Department of the Interior of the Krasnoyarsk Region (“the internal security department”) that the applicant had extorted money from him. In particular, the applicant had asked for money in exchange for assisting him, through his contacts in the regional government, in obtaining a licence for the retail sale of alcoholic beverages. Mr P. gave the internal security department a recording he had made of his telephone conversation with the applicant earlier the same day. During that conversation the applicant had asked Mr P. to bring him money before 2 August 2008. 8. Police officers invited Mr P. to take part in an “operative experiment” (“оперативный эксперимент”), to which he consented. On the same day the head of the internal security department ordered an operative experiment in respect of the applicant with the use of audio and video recording devices. 9. On the same day, 31 July 2008, the head of the internal security department also ordered the interception of the applicant’s telephone communications without judicial authorisation by reference to section 8(3) of the of the Operational-Search Activities Act (hereafter “the OSAA”). The decision read in its entirety as follows: “[The internal security department] has received operative information that [the applicant], a senior police officer with the Economic Crimes Department of the Department of the Interior of the Krasnoyarsk Region, is extorting money in the amount of 200,000 roubles from [P.], the director of limited liability company [the company name], for assisting him in obtaining a licence for the retail sale of alcoholic beverages. At the request of the police officer the money must be delivered in the period from 31 July to 2 August 2008; the exact time and place for delivering the money is to be agreed in advance by telephone [telephone number] given by [the applicant]. [The applicant’s] actions contain elements of a criminal offence under Article 290 § 2 of the Criminal Code [bribe-taking] ... It is necessary to perform the operational-search measure ‘interception of telephone communications’ with the aims of documenting [the applicant’s] criminal activities in a thorough and objective way, collecting evidence and uncovering other participants in criminal offences.” 10. On 1 August 2008 the acting head of the internal security department sent a letter to the deputy President of the Tsentralnyy District Court of Krasnoyarsk, informing her that on 31 July and 1 August 2008 the applicant’s telephone had been tapped in accordance with the urgent procedure provided for by section 8(3) of the OSAA. He then repeated verbatim the decision of 31 July 2008 ordering the interception of the applicant’s telephone communications. 11. On the same day, 1 August 2008, after the police had intercepted the applicant’s telephone conversation with Mr P. in which the two men had arranged to meet later that day, Mr P. was provided with a video camera, a radio transmitter and the necessary amount of money in banknotes marked with a special substance. The applicant and Mr P. met in the applicant’s car, where Mr P. left the marked money. Immediately after Mr P. had left, the applicant was arrested by the police, his car was searched and the money was seized. 12. On 18 August 2008 the Investigations Committee of the Krasnoyarsk Region opened criminal proceedings against the applicant on suspicion of attempted fraud, an offence under Article 159 of the Criminal Code, in connection with the aforementioned incident. The applicant was suspected of attempted fraudulent appropriation of the funds of a private company in the amount of 200,000 Russian roubles. 13. On 28 October 2008, in reply to a request from the applicant for an expert examination of the recordings of his telephone conversations and the video recordings of his meeting with Mr P., the investigator in charge of the case held, in so far as relevant, as follows: “... [the applicant’s] guilt for the criminal offence under Article 159 § 3 ... is completely proven by the preponderance of evidence collected.” 14. Identical statements were made by the investigator in his decisions of 7 November and 12 December 2008 and 1 April 2009 rejecting various complaints lodged by the applicant. 15. In reply to the applicant’s complaints that his telephone had been tapped unlawfully without judicial authorisation, the investigator stated, in his decisions of 7 November and 12 December 2008, that section 8(3) of the OSAA permitted the interception of telephone communications without judicial authorisation in urgent cases, provided that a court was notified within twenty-four hours of its commencement and judicial authorisation was obtained within forty-eight hours, failing which it had to be discontinued. Interception of the applicant’s telephone communications had been ordered by the head of the internal security department because at the time there had been sufficient reasons to believe that the applicant was involved in a serious criminal offence punishable under Article 290 § 2 of the Russian Criminal Code. The District Court had been notified of the interception the next day, and on the same day, that is, before the expiry of the forty-eight-hour time-limit, the interception had been discontinued; hence, there had been no reason for seeking judicial authorisation. The interception of the applicant’s telephone communications had therefore been lawful. 16. During the trial the applicant challenged the admissibility of all the items of evidence obtained as a result of the “operative experiment” and the interception of his telephone communications. He argued, in particular, that the police had had insufficient grounds for carrying out the surveillance measures and that they had not obtained a judicial authorisation to intercept his telephone communications. 17. On 7 December 2009 the Tsentralnyy District Court declared the audio and video recordings admissible as evidence. It held, in so far as relevant, as follows: “... [the applicant] argues that the operative experiment and other operational-search measures were unlawful because such measures are permissible only with the aim of suppressing, preventing and investigating criminal offences of medium severity or more serious criminal offences. I suppose that at the time when the police made the decision to carry out the operative experiment and other operational-search measures against [the applicant] they had information that he had committed criminal offences classified as serious or especially serious under the law (abuse of power, bribetaking). In the court’s opinion, for ordering operational-search measures it is sufficient that there be some elements of a criminal offence, rather than the entire corpus delicti, permitting [the police] to make a preliminary rather than definitive classification of the offence ... The court is not convinced by [the applicant’s] arguments that the interception of his telephone communications was unlawful because the case file does not contain a judicial decision authorising this operational-search measure. The operational-search measure against [the applicant] was carried out in conditions of urgency. Section 8(3) of the OSAA provides that a judge must be informed within twentyfour hours of the commencement of operational-search activities in conditions of urgency and that judicial authorisation must be obtained within forty-eight hours, failing which the activities must be discontinued. The court agrees with [the applicant] that the case file does not contain a judicial decision authorising operational-search measures. At the same time it notes that a judge was informed about the operational-search measures within twenty-four hours and the measures were discontinued within forty-eight hours of their commencement, as required by section 8(3) of the OSAA. No judicial refusal of authorisation was received. It therefore finds that no breaches of legal provisions governing operationalsearch measures were committed in the present case ...” 18. On 22 December 2009 the District Court convicted the applicant as charged, sentenced him to two years and two months’ imprisonment, and stripped him of his rank in the police. The court based its judgment on the statements of numerous witnesses, material evidence, expert opinions, and the audio and video recordings made on 31 July and 1 August 2008. It found that the recordings were authentic and had been obtained in accordance with the procedure prescribed by law, repeating the reasoning set out in the decision of 7 December 2009 on the admissibility of evidence. 19. In his appeal submissions the applicant complained, among other things, that the District Court had relied on unlawfully obtained evidence, in particular on recordings of his telephone conversations made without judicial authorisation. He also contested the authenticity of the recordings. 20. On 8 April 2010 the Krasnoyarsk Regional Court upheld the applicant’s conviction on appeal, adhering to the reasoning of the trial court. It found, in particular, that the audio and video recordings had been correctly declared admissible as evidence and found authentic.