CASE OF MISAN v. RUSSIA
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
5. The applicant was born in 1973 and lived in Vladivostok. She died on 16 April 2007. 6. On an unspecified date the military prosecutor’s office had opened criminal proceedings against the applicant’s father K., a naval officer, on suspicion of document forgery. 7. On 14 March 2003 the acting prosecutor of the Pacific Fleet issued a warrant to search the applicant’s flat. The parties did not submit a copy of the warrant. It is apparent from the search record of 14 March 2003 that the purpose of the search was “to find and seize objects and documents, including draft calculations in respect of the salary due to [K.] and other naval officers of the ship Argun, and other data storage media exposing [K.’s] involvement in criminal activity”. 8. The police came to the applicant’s flat on the same evening, at about 9.30 p.m. As the applicant refused to let them in, the police broke down the door and suggested that the applicant surrender objects and documents which could be of relevance for the criminal case against her father. The applicant surrendered K.’s seaman’s passport and claimed that she had no other documents or objects belonging to her father. The police searched the flat and seized the applicant’s seaman’s passport, a printer and six floppy disks. The search ended at about 11 p.m. 9. On 18 March 2003 the applicant lodged a complaint before the Frunzenskiy District Court of Vladivostok, claiming that the search had been unlawful. She submitted, in particular, that night searches were unlawful under domestic law. She further submitted that the search had not been justified because the calculations in respect of the salary due to naval officers of the ship Argun had been submitted to the court at an earlier date and could therefore be found in the case file. She also complained that her and her husband’s personal belongings, including their printer and floppy disks and her seaman’s passport, had been seized. 10. On 20 April 2003 the applicant was informed that her complaint would be examined on 21 April 2003 by the Military Court of the Vladivostok Garrison. 11. On 21 April 2003 the Military Court of the Vladivostok Garrison examined the applicant’s complaint. The applicant did not attend the hearing. The court found: “[The applicant’s] signature on the search warrant confirms that she had been notified of it at 9.30 p.m. on 14 March 2003. It is apparent from the search record of 14 March 2003 that a search was carried out in [the applicant’s] flat from 9.30 p.m. to 11 p.m. In the course of the search the following objects were seized: seaman’s passport in the name of K. no. [...], seaman’s passport in the name of K. no. [...], seaman’s passport in the name of [the applicant] no. [...], Canon printer no. EUK04532, its power module no. 981202TT06 and six floppy disks. That investigative measure was carried out in the presence of two attesting witnesses who signed the search record and a note explaining their rights. Before the start of the search [the applicant] wrote a note on the search record stating that her rights, obligations or applicable procedures had not been explained to her. It is apparent from the questioning record of witness [N.] that she participated in the search of [the applicant’s] flat as an attesting witness. Her rights were respected. In view of the above, it follows that the search of [the applicant’s] flat was carried out in accordance with Articles 182 and 183 of the CCrP, without any breaches of law. [The applicant’s] complaint is therefore unsubstantiated and must be rejected.” 12. The applicant appealed. She complained, in particular, that the search had been carried out late at night and that the personal belongings seized from her were of no relevance to the criminal case against her father. The applicant expressed her wish to be present and represented at the appeal hearing. 13. On 23 June 2003 the Military Court of the Vladivostok Garrison informed the applicant that her appeal would be examined by the Military Court of the Pacific Fleet on 7 July 2003. 14. According to the applicant, on 7 July 2003 her counsel telephoned the judge and asked for an adjournment of the appeal hearing because she – the counsel – was ill. The applicant was present during the call. According to the Government, no record of that telephone call was found in the case file. 15. On 7 July 2003 the Military Court of the Pacific Fleet held a hearing in the absence of the applicant and her counsel and upheld the judgment of 21 April 2003. It noted that the applicant had been informed of the date of the hearing but had not attended for unknown reasons. She had not asked for an adjournment. The court further held: “It is apparent from the case-file that the search [of the applicant’s flat] was ordered on 14 March 2003 by the acting prosecutor of the Pacific Fleet at the request of the investigator ... in connection with criminal proceedings against her father [K.]. It is apparent from the search record that during the search [K.’s and the applicant’s] seaman’s passports, a printer and its power module were seized. There is no evidence of any breaches of procedure. [The applicant’s] complaint about the use of force during the search is not supported by any evidence in the case-file. There is no evidence that [the applicant] or members of her family sought medical aid. Nor did she mention the use of force when signing the search record. Domestic law allows the possibility of carrying out investigative measures at night in cases of urgency. Moreover, the search of [the applicant’s] flat continued until after 11 p.m. because she had refused to let the police in. There is no evidence of breaches of law in seizing [the applicant’s] documents and other belongings during the search.” 16. The applicant received a copy of the appeal decision on 16 July 2003.