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

s been no violation of Article 8 of the Convention.
2. We would like to observe that after the "test purchase operation", at the moment when the applicant saw the "clients" to the door, police officers who had been waiting outside entered the flat. They were followed by an investigator. The exact circumstances of the entry into the flat are disputed. According to the applicant, the police squad and the investigator burst into the flat, whereas according to the Government, the investigator was granted permission to enter the flat by the applicant, who did not object to the investigator's presence and the inspection of the crime scene.
3. The majority rightly depart from the assumption that the investigating officer entered the applicant's flat against the latter's will (see paragraph 35 of the judgment).
4. In paragraph 41 of the judgment, the Court rightly emphasises that the relevant legislation and practice should nevertheless have afforded adequate and effective safeguards against abuse (see {Societe} Colas Est and Others v. France, No. 37971/97, § 48, ECHR 2002-III).
5. However, that was not the case in this instance. Indeed, in our view, the whole operation was inconsistent with Article 8 of the Convention because of the lack of sufficient safeguards. The conditions for instituting a search and seizure, as well as the rules governing such a significant intrusion into the rights guaranteed under Article 8 of the Convention, appear too lax and full of loopholes for the interferences with the applicant's rights to have been strictly proportionate to the legitimate aim pursued. The investigating officer acted without a judicial warrant and prior to the institution of the criminal proceedings against the applicant for forgery. In addition, the domestic legislation left it to the discretion of the investigator to determine whether it was necessary for an accused, a suspect, a victim, a witness or an expert to take part (see paragraph 43 of the judgment).
6. In contrast with the majority view, we are therefore of the opinion that the conditions laid down in the domestic law were not sufficient to exclude arbitrary, and hence disproportionate, intrusions into people's homes. In addition, in the present case, the lack of procedural safeguards (see paragraph 22 of the judgment), on account of the alleged urgency of the matter, made the intrusion a disproportionate interference under Article 8.
7. Consequently, we are of the opinion that the entry into, and inspection of, the applicant's home by the investigating officer did not comply with Article 8 of the Convention.






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