Tortladze v. Georgia (Application no. 42371/08)

A selection of key paragraphs can be found below the judgment.

59.  It is common ground between the parties that the search of the consular premises constituted an interference with the applicant’s rights under Article 8 of the Convention. The Court sees no reason to hold otherwise (see, among many other authorities, Modestou v. Greece, no. 51693/13, § 29, 16 March 2017; Saint-Paul Luxembourg S.A., cited above, §§ 37 and 39; Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, § 43, ECHR 2007‑IV; and Panteleyenko v  Ukraine, no. 11901/02, § 47, 29 June 2006). …The question therefore remains whether this interference was justified under Article 8 § 2 of the Convention. 

63. There is no doubt that the search served a legitimate aim, namely to prevent crime and protect the rights of others (see Modestou, § 39, K.S. and M.S. v. Germany, § 36, Gerashchenko, § 128, and Smirnov, § 40, all cited above). It remains to be examined whether the interference was “necessary in a democratic society”. In this connection the Court will focus on the allegations of the applicant of insufficient protection from arbitrariness and lack of adequate safeguards.

66. As to the issue of judicial scrutiny, the Court notes that the absence of a prior judicial warrant for a search may be counterbalanced by the availability of an ex post factum judicial review (see Heino v. Finland, no. 56720/09, § 45, 15 February 2011). This review must, however, be effective in the particular circumstances of the case in question (see Smirnov, cited above, § 45 in fine). In the present case, the ex post factum judicial review was conducted promptly, on 26 August 2005 (see paragraph 14 above).However, the Court notes that it has already found in its judgments against Georgia, albeit in the context of the examination of the fairness of criminal proceedings under Article 6 of the Convention, that post-search judicial reviews are not adequate and sufficient for the purposes of establishing the circumstances of a search (see Kobiashvili v. Georgia, no. 36416/06, §§ 67-69, 14 March 2019, and Megrelishvili v. Georgia [Committee], no. 30364/09, § 35, 7 May 2020). The Court considers that a similar conclusion is warranted under Article 8 of the Convention in this case. Thus, the domestic court did not elaborate in its decision on the issue of the necessity of a search in urgent circumstances (see Stoyanov and Others v. Bulgaria, no. 55388/10, § 130, 31 March 2016). Nor did it examine whether the measure had been “necessary in a democratic society” and whether it had been proportionate (see paragraph 15 above; compare with Doroż v. Poland, no. 71205/11, § 28, 29 October 2020; see also, mutatis mutandis, Hambardzumyan v. Armenia, no. 43478/11, § 46, 5 December 2019, and Zubkov and Others v. Russia, nos. 29431/05 and 2 others, §§ 97‑98, 7 November 2017). It seems that the domestic court was required to do so, as Article 13 § 2 of the CCP explicitly provided for the assessment of the lawfulness and reasonableness of a search and seizure carried out in the absence of a judicial order (see Article 13 § 2 of the CCP as cited in paragraph 36 above; contrast Ivashchenko v. Russia, no. 61064/10, § 89, 13 February 2018). 

67. The applicant challenged the lawfulness of the search and the justification for it in the course of the criminal trial conducted against him. The Court notes that, while as argued by the Government, the domestic courts did indeed review the lawfulness of the search, they did not consider the issue of the justification for such an intrusion and its proportionality.

68. In view of all the foregoing, particularly having regard to the defects of the “urgent procedure” identified above and the absence of adequate and efficient judicial scrutiny of the interference in the present case, the Court considers that the search of the consular premises was not attended by appropriate and sufficient safeguards. There has accordingly been a violation of Article 8 § 1 of the Convention.