Постановление Европейского суда по правам человека от 14.01.2010 "Дело "Мастепан (Mastepan) против Российской Федерации" [рус., англ.]

s that although the scale of the inspection that was conducted at the applicant's home with the view of securing the traces of the crime and other physical evidence justified the impugned interference with the applicant's right to respect for his home, the relevant legislation and practice should nevertheless have afforded adequate and effective safeguards against abuse (see {Societe} Colas Est and Others, cited above, § 48).
42. The Court must therefore verify whether in the present case the restrictions and conditions provided for in domestic law were appropriate.
43. In this respect the Court observes that the domestic law in force at the material time permitted an investigator to penetrate into a home against the will of those living there for the purpose of carrying out an inspection of a crime scene. The domestic law defined the scope of the inspection as "finding and securing the traces of the crime and other physical evidence, clarifying the crime scene and other relevant circumstances". The inspection of a crime scene was supplemented by a power of seizure and did not require prior judicial approval. The criminal proceedings could be opened either before the inspection or shortly afterwards (see paragraphs 21 - 22 above). The domestic law further provided that the inspection was to be conducted in the presence of attesting witnesses. Whether it was necessary for an accused, a suspect, a victim, a witness or an expert to take part was left to the discretion of the investigator. A record of the inspection had to be drawn up (see paragraphs 23 - 24 above). A person could ex post facto challenge the lawfulness of the investigator's actions before a court (see paragraph 25 above). The Court is satisfied that the above restrictions and conditions of the domestic law were sufficient to exclude arbitrary intrusions into people's homes.
44. Turning to the circumstances of the present case the Court observes that the inspection of the applicant's home implied a certain urgency and for that reason was carried out prior to institution of the criminal proceedings against the applicant. The Court further observes that the investigator did not overstep the scope of the inspection as defined in the domestic law. The inspection was conducted in the presence of two attesting witnesses. The record of the inspection was drawn up thereafter. Shortly afterwards, within a matter of a few days, criminal proceedings were instituted against the applicant on suspicion of forgery of official documents. The applicant used his right to challenge the lawfulness of the applied investigative measure.
45. Regard being had to the above, the Court considers that the interference with the applicant's right to respect for his home had been proportionate to the legitimate aim pursued.
46. There has therefore been no violation of Article 8 of the Convention in the present case.

FOR THESE REASONS, THE COURT

1. Declares unanimously the complaint concerning the entry into, and inspection of, the applicant's flat by the investigation officer admissible;
2. Holds by five votes to two that there has been no violation of Article 8 of the Convention.

Done in English, and notified in writing on 14 January 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Christos ROZAKIS
President

{Soren} NIELSEN
Registrar

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Rozakis and Spielmann is annexed to this judgment.

C.L.R.

S.N.

DISSENTING OPINION OF JUDGES ROZAKIS AND SPIELMANN

1. We are unable to share the majority view that there ha

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