The European Convention on Human Rights (the Convention) sets human rights and fundamental freedom principles applicable in the member states. Article 8, in particular, confers people the right to respect for his private and family life, his home, and his correspondence. Complainants of unlawful computer searches have claimed government violation of article 8 of the Convention. This article provides an example of the European Court of Human Rights analysis of article 8 when applied to home searches and computer seizures.
The European Convention on Human Rights was signed on January 1966, and has been ratified by most member states. Among the human rights the Convention lists, the right to private and family life, home and correspondence is included and must be protected by member states. According to article 8, public authority cannot interfere with this right, unless it is necessary in accordance with the law in a democratic society pursuant to national security, public safety, crime prevention, the country's well-being, protection of health or morals, or for the protection of the rights and freedoms of others. Article 8(2). Article 13 grants people the right to a remedy before a national authority when rights and freedoms under the Convention are violated, even by public agents in their official capacity. The rights and freedoms the Convention sets must be secured without discrimination on grounds of gender, race, color, language, religion, political or other opinion, national or social origin, minorities, property, birth or any other status. Article 14.
In the case of Smirnov v. Russia, [2007] ECHR 71362/01, the European Court of Human Rights (the Human Rights Court) considered the application of article 8 and 13 of the Convention to, what claimant claimed to be, an illegal search and seizure. The complainant in this case was a lawyer who represented a group of defendants that the government of Russia accused of serious crimes. A search warrant was granted to the claimant's home to search objects and documents relevant to the criminal case that, the case investigator suspected, were held at the lawyer's home. Several documents and the complainant's computer central unit (CPU) were seized while complainant was present. The complainant, to not avail, opposed the seizure of his CPU; the documents and CPU seized became part of the physical evidence in the criminal case against the lawyer's clients. Later, pursuant to article 13, the claimant sought a judicial declaration that the search and seizure at his home was unlawful. The claimant also argued that the search and seizure of documents and the CPU impaired his client's right to defense. After the claimant's complaint, Russian authorities returned some documents to him but kept the CPU. The court of first instance then denied claimant's complaint as to the illegality of the search and seizure under article 8 of the Convention. The court held that the search and seizure of the claimant's home was conducted in accordance with domestic law and that attachment of the CPU was not amenable to judicial review. On appeal, the court of appeals confirmed the first instance decision.
Subsequently, claimant filed a claim before the European Court of Human Rights alleging that Russian's government search and seizure of client's documents and his CPU violated his right to private life and enjoyment of possessions according to article 8 of the Convention, and that the domestic courts have denied his right to a remedy under article 13 of the Convention.
The Human Rights Court held that the search and seizure conducted by the Russian government violated article 8 of the Convention and that claimant was denied domestic remedy under article 13 of the Convention. The Human Rights Court rendered its decision by addressing three main points:
(1) Determining whether a search of an individual premises and seizure of his belongings is necessary in a democratic society, require the analysis of circumstances such as (a) the basis upon which a search warrant is issued; (b) the content and scope of the warrant; (c) the manner in which the search warrant is executed; and (d) the possible repercussion on the work and reputation of the person affected. In complainant's case, he was not the subject of criminal investigation, but his clients; the search order was broad and vague and this gave police the unfettered discretion regarding documents and objects to be seized; the order did not include safeguard to protect professional privilege regarding some documents found in the lawyer's home that were critical for proper administration of justice. Therefore, the search of claimant's home and seizure of his property were not necessary in a democratic society; and thus, they violated article 8 of the Convention. The court relied on Funke v France [1993] ECHR 10828/84; and Niemietz v Germany [1992] ECHR 13710/88.
(2) Regarding retention of physical evidence, the Human Rights Court held that this is proper for the interest of administration of justice and general interest of the community. Yet, there must be a "reasonable relationship of proportionality between the means employed and the aim sought." There must be a balance between the community general interest and the individual's human rights. In this case, claimant's computer was not the instrument of any criminal offense; there was not reason for retention of claimant's CPU for a period longer than six days; and the CPU was an instrument used for the claimant's profession and confiscation impaired his professional activities. Thus, the authorities failed to strike a fair balance between the claimant's rights according to article 8 and the community interest.
(3) Also, the Court held, applicant was denied proper remedy under article 13 of the Convention because Russian's domestic laws did not provide an available remedy to review the legality of decisions taken by investigators in criminal proceedings. The court relied on Horvat v Croatia [2001] ECHR 51585/99 to determine this issue.
This case is a great precedent for the interpretation of article 8 and 13 of the Convention; especially, when applied to European countries with questionable democratic principles. Application of article 8 and 13 of the Convention to government actions in other European countries may not be as complex as its application in new democracies.