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Постановление Европейского суда по правам человека от 09.04.2009 "Дело "Колесниченко (Kolesnichenko) против Российской Федерации" [рус., англ.]





e investigator did not refer to any evidence which could have corroborated his conjecture that the applicant was involved in the printing of the documents allegedly forged by Mr S. The District Court, for its part, merely acknowledged the existence of the report without analysing its contents and findings. Whilst acknowledging that the applicant was an advocate and that he had not been charged or accused of any criminal offence or unlawful activities, the District Court did not examine whether the material gathered by the investigation was capable of founding a reasonable suspicion that he was implicated in the fraud allegedly organised by Mr S. The Court finds therefore that the search warrants were not founded on "relevant and sufficient" reasons.
33. The Court further notes that the search warrants did not specify what objects or documents were expected to be found at the applicant's home or office or how they would be relevant to the investigation. They allowed the investigative authorities to carry out searches in the applicant's home and office in general and broad terms (compare Niemietz, cited above, § 37; Smirnov, cited above, § 47; and Ernst and Others v. Belgium, No. 33400/96, § 116, 15 July 2003). The subsequent judicial review confirmed that the search warrants had not referred to "any concrete list of objects or documents" and that the investigator therefore had unrestricted discretion in determining which documents were "of interest" for the criminal investigation (see paragraphs 16 and 18 above). Moreover, in issuing the warrant the judge did not touch upon the issue of whether privileged material was to be safeguarded, although he was aware - as was mentioned in the text of the search warrants - that the applicant was a bar member and could have possessed documents given to him by his clients. According to the Court's case-law, search warrants have to be drafted, as far as practicable, in a manner calculated to keep their impact within reasonable bounds (see Iliya Stefanov v. Bulgaria, No. 65755/01, § 41, 22 May 2008, and Van Rossem v. Belgium, No. 41872/98, § 45, 9 December 2004). This requirement was manifestly disregarded in the present case.
34. The Court finally observes that the warrant's excessive breadth was reflected in the way in which it was executed. After the applicant had voluntarily handed over the copying device at the request of the investigator, the latter nevertheless proceeded with a thorough search of the premises at both Gorky and Kuybyshev Streets, and seized the applicant's computers with peripherals, personal and professional records, business cards and other objects. The Court notes that during the search there was no safeguard in place against interference with professional secrecy, such as, for example, a prohibition on removing documents covered by lawyer-client privilege or supervision of the search by an independent observer capable of identifying, independently of the investigation team, which documents were covered by legal professional privilege (see Sallinen and Others v. Finland, No. 50882/99, § 89, 27 September 2005, and Tamosius v. the United Kingdom (dec.), No. 62002/00, ECHR 2002-VIII). The presence of two attesting witnesses obviously could not be considered a sufficient safeguard, given that they were laymen who had no legal qualification and were unable to detect privileged material (see Iliya Stefanov, cited above, § 43). Moreover, as regards the electronic data contained in the applicant's computers which were seized by the investigator, it does not seem that any sort of sifting procedure was followed during the search (see Wieser and Bicos Beteiligungen GmbH, cited above, § 63).
35. Having regard to the materials that were inspected and seized, the Court finds that the search impinged on professional secrecy to an extent that was disproportionate to whatever legitimate aim was pursued. The Court reiterates



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