FIFTH SECTION
CASE OF POGREBNYY AND OTHERS v. UKRAINE
(Application no. 42419/04)
JUDGMENT
STRASBOURG
19 October 2023
This judgment is final but it may be subject to editorial revision.
In the case of Pogrebnyy and Others v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President,
Lətif Hüseynov,
Kateřina Šimáčková, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 42419/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Borys Oleksandrovych Pogrebnyy (“the first applicant”), on 15 November 2004, and NGOs Rodyna (“the second applicant”), Myloserdya (“the third applicant”) and the Kyiv Large Families’ Union (“the fourth applicant”), lodged on various dates indicated in the appended table, and who were represented, until the beginning of 2020, by Mr P. Pavlyk, a lawyer practicing in Kiyv;
the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, most recently Mr I. Lishchyna, of the Ministry of Justice;
the Registry’s letter informing the Government that the application may be assigned to a Committee of three judges;
the parties’ observations;
Having deliberated in private on 28 September 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns various aspects of the criminal proceedings against the first applicant, including seizure and attachment of property that he and the other applicants had at their disposal. It raises issues under Article 8 of the Convention.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
2. The first applicant was born in 1955 and lived in Vasylkiv, Kyiv Region. He was the sole founder and director of the three other applicants.
3. The second, third and fourth applicants are non-profit charitable NGOs based in Vasylkiv. On 13 March 2007 the third applicant was liquidated by a court decision upon the request of the State Tax Administration.
4. On an unspecified date the non-governmental organisation Counterpart, based in the United States of America, delivered clothes and bedding to the second and fourth applicants as humanitarian aid. These applicants had to distribute it to the beneficiaries under the supervision of Counterpart and the Cabinet of Ministers of Ukraine.
Criminal proceedings against the first applicant5. In April 1999 Counterpart reported to the police that the first applicant had stolen the humanitarian aid. On 15 April 1999 the Vasylkiv police instituted criminal proceedings (case no. 08-6086) against him and arrested him. According to the first applicant, the police had handcuffed and beaten him, had not allowed him to contact a lawyer or informed of the reasons for his arrest.
6. On 12 April 2000 the police also instituted a criminal investigation (case no. 08-7003) into the theft of money from bank accounts belonging to the second and fourth applicants. The case was joined to and separated from case no. 08-6086 on several occasions, but no charges were brought against the first applicant in case no. 08-7003.
7. The first applicant remained in custody until 20 September 1999 when he was released on an undertaking not to abscond.
8. The criminal proceedings against the first applicant in case no. 08‑6086 were discontinued and resumed several times. Between 12 April and 27 December 2000, 15 January and 22 March 2001, and 23 March and 17 September 2001 no proceedings were pending against him.
9. On 31 July 2002 case no. 08-6086 was discontinued for lack of corpus delicti. The first applicant’s undertaking not to abscond was cancelled by the same decision. The investigation in case no. 08-7003 continued.
10. In January 2006 the first applicant asked the Ministry of the Interior to reopen case no. 08-6086, join it to case no. 08-7003 and discontinue the joined criminal case.
11. On 19 January 2006 the Ministry of the Interior ordered that the criminal proceedings in case no. 08-6086 be reopened. According to the first applicant, on the same date his undertaking not to abscond became valid again, however the material in the case file does not support this assertion. On 18 May 2006 cases nos. 08‑6086 and 08-7003 were joined as case no. 08-6086.
12. On 29 May 2006 the police dropped the charges against the first applicant.
13. The police continued the criminal investigation into the misappropriation of funds from the accounts of the second and fourth applicants until at least 2010.
Seizure and attachment of property and documents in the criminal proceedings against the first applicantSeizure of property14. In April 1999, in the framework of the criminal proceedings against the first applicant, the police seized from him about 2,500 items of humanitarian aid. They also seized two baggage racks, eighteen meat skewers, a fax machine, weighing scales and carts belonging to the first applicant personally. According to him, the police also seized other property and 10,000 United States dollars belonging to him personally.
15. The humanitarian aid was joined to the file of criminal case no. 08‑6086 as evidence.
16. On 31 July 2002 the police issued a decision saying that all the items seized and joined as evidence to the criminal case against the first applicant had to be returned to him in his capacity as head of the fourth applicant. However, the property was not returned, and he instituted several sets of judicial proceedings in that regard.
Seizure of documents17. According to the first applicant, in April 1999, in the framework of the same criminal proceedings against him, the police also seized his personal documents and those relating to his professional activities, in particular: (i) his medical and accounting diplomas, two medical training certificates, his military service record card, a foreign language certificate, his driving licence and his foreign passport (“personal documents”); (ii) financial documents relating to the second applicant, including its statutes and various unspecified certificates from the authorities (“financial documents”); and (iii) the articles of association of the second, third and fourth applicants.
18. According to the Government, the first applicant’s personal documents were never seized by the police. They submitted to the Court a certificate issued by the department of the Kyiv regional police responsible for issuing passports for travelling abroad to people living in Kyiv Region, including Vasylkiv. According to the police, the first applicant was never issued with such a passport. The Government also submitted a certificate issued by the State Employment Service stating that in 2007 the first applicant had registered with them as unemployed and shown his medical diploma.
19. The first applicant instituted judicial proceedings seeking the return of his personal documents and the financial documents relating to the second applicant.
Attachment of the first applicant’s property20. In July 1999 the Kyiv regional police ordered the attachment (арешт майна) and seizure of the first applicant’s two apartments and the houseware therein.
21. On 31 July 2002 the police lifted the attachments, however, for unknown reasons, the lifting was not properly recorded in a relevant state register.
22. On 30 May 2006, following a request by the first applicant lodged three days earlier, the police again issued a decision lifting the attachment. On 8 June 2006 relevant records were introduced into the register.
23. In 2007 the first applicant unsuccessfully requested the courts to declare the decisions ordering the attachments unlawful.
Proceedings instituted by the first applicantFirst set of proceedings24. On 19 December 2002 a court awarded the first applicant 10,000 Ukrainian hryvnias (UAH)[1] in compensation for his unlawful criminal prosecution (it is unknown which aspects of it were concerned). Only the prosecution carried out in the framework of the first set of criminal proceedings against him (case no. 08-6086) was mentioned in the court’s decision. The first applicant’s appeals were rejected on procedural grounds. On 23 April 2003 the judgment of 19 December 2002 was fully enforced.
Second set of proceedings25. On 23 December 2003 the Fastiv District Court, following the first applicant’s complaint, ordered the police to return to him unspecified financial documents relating to the second applicant’s activities seized during the criminal proceedings. The court also awarded the first applicant UAH 32,940[2] in compensation for technical equipment which had been seized by the police but later lost. The court also awarded the first applicant UAH 500[3] in legal fees. As regards some other items and money which the applicant sought to return, the court found that there was no evidence that they had actually been seized by the police.
26. The judgment of 23 December 2003 became final on 8 June 2004.
27. On 26 October 2005 the first applicant received the unspecified documents relating to the second applicant by registered letter. According to the Government, he received all the financial documents relating to the second applicant seized in the course of the criminal proceedings on that date. The first applicant, on the other hand, claimed to the domestic authorities and the Court that he had received some but not all of the financial documents. He did not specify to the Court which documents were missing or their significance.
28. On 1 August 2012, following a complaint by the first applicant, the Kyiv Administrative Court of Appeal ordered the bailiffs to return to him all the financial documents relating to the second applicant as ordered by the judgment of 23 December 2003 and pay him the UAH 3.34 outstanding under that judgment. The court did not specify which of the second applicant’s documents had not yet been returned. It also awarded him UAH 500[4] for non-pecuniary damage caused by the length of time the judgment of 23 December 2003 remained unenforced. It is not clear whether that amount was paid to the applicant.
Third set of proceedings29. On 4 April 2003, following a request by the first applicant, an investigator from the Kyiv regional police awarded him compensation for unlawful prosecution (case no. 08-6086). As no copy of the request was made available to the Court, it is impossible to establish for which aspects of the criminal proceedings the first applicant requested compensation.
30. On 28 August 2003 the decision of 4 April 2003 was quashed by a court and the police was ordered to re-examine the first applicant’s request.
31. By the final decision of 17 December 2003 the Kyiv City Court of Appeal amended the judgment of 28 August 2003, clarifying that the relevant decision had to be delivered by C., the head of the investigation unit of the Kyiv regional police.
32. On 21 March 2006, following a complaint by the first applicant, the Shevchenkivskyy District Court of Kyiv found that the judgment of 28 August 2003 remained unenforced and noted that the police had not yet returned to the first applicant the financial and personal documents and personal belongings. However, the operative part of the decision did not contain a list of such items or an order to return them.
33. The decision of 21 March 2006 became final.
34. In the framework of the enforcement of the order of 28 August 2003, M., an investigator from the Kyiv regional police, twice issued decisions refusing the first applicant’s request for compensation noting that he had already been awarded compensation by the judgment of 19 December 2002. The applicant’s appeals against M.’s decisions were rejected by the courts for failure to comply with procedural requirements.
35. The bailiffs established that the decisions mentioned in paragraph 37 above had not been issued by C., the person against whom the decision of 21 March 2006 had been made. On 19 November 2007 the bailiffs discontinued the enforcement proceedings against C. because it was impossible to enforce the judgment in the absence of any cooperation on his part.
36. According to the first applicant, the decision of 21 March 2006 remains unenforced.
Fourth set of proceedings37. In November 2006 the first applicant instituted proceedings in the Shevchenkivskyy District Court against the local police seeking the return of the humanitarian aid and his personal belongings (three sets of kitchenware, two audio recorders, three sofas, five carpets, some furniture, an oven, a refrigerator, eighteen skewers, two baggage racks) and his personal documents seized during the criminal proceedings.
38. On 17 April 2007 the Shevchenkivskyy District Court ordered the police to return to him his personal documents (including his medical and accounting diplomas, foreign language certificate, driving licence and foreign passport) and personal belongings mentioned in the preceding paragraph. The court refused to order the return of the humanitarian aid to him because he was not its lawful owner.
39. Enforcement proceedings were instituted. The bailiffs established that the items listed in the judgment were not in the police’s possession and for that reason could not be returned.
40. On 27 August 2008 the Supreme Court upheld the part of the decision of 17 April 2007 concerning the humanitarian aid and quashed its remainder. The court noted that the personal documents had been seized by the police. However, there was no proof that they were still in the police’s possession and could thus be returned. The court also noted that the kitchenware, two audio recorders, three sofas, five carpets, furniture, oven and refrigerator had not been seized from the applicant. The Supreme Court remitted the applicant’s claims concerning his personal documents, skewers, baggage racks and homeware to the Shevchenkivskyy District Court for fresh consideration.
41. While the first applicant’s case was pending before that court, the first applicant amended his claims numerous times. Eventually, he claimed the return of his personal documents or compensation for them of more than 45 billion hryvnias. He also sought the return of the two baggage racks and eighteen skewers, which he claimed were made of gold.
42. On 24 October 2011 the Shevchenkivskyy District Court ordered the police to return to him the eighteen skewers and one baggage rack. By the same decision the court noted that the police had seized the first applicant’s personal documents. However, the police could not return them because they were missing. The court rejected the applicant’s claim for compensation for the documents, stating that he had not proven that they had any material value or that he had spent money on obtaining replacements.
43. On 9 February 2012 the Kyiv Court of Appeal amended the judgment in part, obliging the police to return the eighteen skewers and two baggage racks to the first applicant. That judgment became final.
44. On 12 June 2012 the police asked the first applicant to come and collect the eighteen skewers and two baggage racks. It remains unknown whether he did so, but in his letter to the Court of 28 August 2017 the applicant stated that the decision of 17 April 2007 remained unenforced.
Other proceedings45. The first applicant instituted numerous other sets of proceedings against various State authorities and their officials, unsuccessfully seeking, inter alia, further compensation for unlawful prosecution; further compensation for the “non-pecuniary damage” caused to him by his undertaking not to abscond, the seizure and retention of his documents, his unemployment and unlawful prosecution; the return of the humanitarian aid; alleged unlawfulness of arrests imposed on his property; alleged inability to vote; compensation for his inability to work and receive a salary as director of the second and the fourth applicants and for loss of income; compensation for non-enforcement and delays in enforcing the domestic decisions in his favour; and reinstatement and compensation for non-pecuniary damage for inappropriate marks made in his working records book, which had prevented him from finding a job. His claims were rejected primarily for failure to comply with procedural requirements and because he had already been compensated for damage relating to his prosecution.
Alleged refusal to provide the first applicant with documents from his domestic case files46. The first applicant requested that the domestic courts send him various case materials in order to send them to the Court. Some of his requests were refused. Before the Court the first applicant did not, however, demonstrate that he had been unable to collect the requested documents using other methods.
Proceedings instituted by the second, third and fourth applicants before the domestic authorities47. The second and fourth applicants sought to join criminal proceedings pending against former high-ranking officials (in particular, former prime-minister T. and former prosecutor general P.) alleging that these persons were responsible for the events described above, in particular, seizure of the humanitarian aid. The courts rejected the applicants’ requests in this respect, finding that there was no link between the criminal proceedings and the events referred to above.
48. The third applicant did not institute any judicial proceedings.
THE LAW
ALLEGED VIOLATION OF ARTICLE 8 of the conventioN49. The first applicant alleged that the police had seized and failed to return his personal documents and the financial documents relating to the activities of the second applicant. He relied on many provisions of the Convention.
The Court considers that this complaint falls to be examined solely under Article 8 of the Convention (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018), which reads as follows:
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
AdmissibilityFinancial documents relating to the activities of the second applicant50. The Court notes that the judgment of 23 December 2003, which became final on 8 June 2004, required the State, inter alia, to return to the first applicant the financial documents relating to the second applicant seized during the criminal proceedings.
51. The Government stated that on 26 October 2005 the first applicant received all the documents. The first applicant disagreed and argued that on that date he had received some but not all the documents. He did not, however, specify which documents he had not received on that date or their significance. The Court is therefore inclined to accept the Government’s position. Accordingly, this part of the first applicant’s complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
Personal documents of the first applicant
52. The Government stated that the first applicant had not exhausted domestic remedies because the proceedings concerning the return of his personal documents were still pending before the domestic courts. They submitted that his submissions were partly untrue and that the police had not seized his personal documents. They adduced documentary evidence suggesting that in 2007 the first applicant had had his medical diploma but that he had never owned a passport for travelling abroad. According to the Government, the only decision ordering the authorities to return the first applicant’s personal documents had been that of 17 April 2007, later quashed by the Supreme Court.
53. The first applicant disagreed and argued that he could not ultimately recover his personal documents. The fact that the documents had been seized was established in the court decisions of 21 March 2006 and 17 April 2007.
54. The Court notes that the applicant repeatedly complained to the domestic authorities about the seizure and retention of his personal documents and initiated various proceedings in this regard. The Court is therefore satisfied that, notwithstanding the fact that some of these procedures may have been still pending when introducing the application, the applicant brought his grievance to the attention of the authorities, affording them opportunities to redress the situation. However, the documents were not returned to him. It follows that the complaint cannot be rejected for non‑exhaustion of domestic remedies.
55. The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
Merits56. The Government advanced the arguments set out in paragraph 52 above. The applicant maintained his complaints.
57. The Court observes that the Government submitted evidence suggesting that the first applicant had never owned a passport for travelling abroad and had had his medical diploma as late as 2007. Nevertheless, the Court considers that it is primarily the role of the domestic courts to establish the facts of the case. They held on 21 March 2006, 17 April 2007 and 24 October 2011 that the police had seized the applicant’s documents and had failed to return them. Moreover, the parties did not dispute that the appellate court’s decision of 17 April 2007, although subsequently quashed, had required the police to return the first applicant’s personal documents. For the Court, this is sufficient to accept the applicant’s allegations.
58. The Court considers that the first applicant took sufficient action by raising the complaint regarding his personal documents with the authorities and that he did not have to avail himself of any other remedy or wait until completion of the fourth set of proceedings (see paragraphs 37-44 above) before lodging this complaint with the Court. The Court thus dismisses the Government’s objection regarding non-exhaustion of domestic remedies.
59. The Court notes that the seizure of documents needed often in everyday life to prove one’s identity, such as a passport, constitutes an interference with private life (see, for instance, Smirnova v. Russia, nos. 46133/99 and 48183/99, §§ 95-97, 24 July 2003, and İletmiş v. Turkey, no. 29871/96, §§ 42-43, 6 December 2005). Regardless of the alleged seizure of the first applicant’s passport for travelling abroad, given that it is not entirely clear whether one was issued to him, the Court notes that the driving licence seized from him was also a document required for everyday use. Its deprivation therefore represented a continuing interference with his private life. The Court also notes that the Government did not suggest that the retention of the applicant’s personal documents after the discontinuation of the criminal proceedings against him had had a legal basis or pursued a legitimate aim. The Court therefore finds that the interference was not justified for the purposes of Article 8 § 2 and, consequently, there has been a violation of Article 8 of the Convention.
Other ALLEGED VIOLATIONS OF THE CONVENTION IN RESPECT OF THE FIRST APPLICANT60. The first applicant complained about the length of the criminal proceedings against him. Moreover, he complained under Article 3 that in April 1999 the police had handcuffed and beaten him.
61. He further submitted complaints under Article 5 concerning his detention which ended in September 1999.
62. He also complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 about the outcome of his various legal disputes and that some of the judgments in his favour remained unenforced for lengthy periods of time or forever.
63. He submitted under Article 1 of Protocol No.1 that the police had not returned to him various items of humanitarian aid and personal belongings allegedly seized in the criminal proceedings; and that the attachments had been unlawfully imposed on his property and had not been lifted in good time.
64. Invoking Article 2 of Protocol No. 4, he contended that his freedom of movement had been restricted by his detention and undertaking not to abscond.
65. He moreover asserted that the courts’ refusals to send him copies of documents from his case files constituted a violation of Article 34 of the Convention.
66. He furthermore complained under Article 3 of Protocol No. 1 that he had been unable to vote during the elections in 1999, 2004 and 2006.
67. He finally submitted that the reopening of the criminal proceedings against him constituted a violation of Article 4 of Protocol No. 7.
68. Having carefully examined these submissions in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be declared inadmissible as manifestly ill‑founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
ALLEGED VIOLATIONS OF THE CONVENTION IN RESPECT OF THE SECOND, THIRD, AND FOURTH APPLICANTs69. The second, third and fourth applicants complained about the seizure of the humanitarian aid by the authorities. The Court considers that this complaint falls to be examined under Article 1 of Protocol No. 1 of the Convention.
70. Having carefully examined these submissions in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must likewise be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION71. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
Damage72. The applicants claimed 45,000,000,000 euros (EUR) in respect of pecuniary and EUR 4,000,000,000 in respect of non-pecuniary damage.
73. The Government contested these claims.
74 The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects the claim in respect of pecuniary damage. On the other hand, it considers it reasonable to award the first applicant EUR 1,200 in respect of non-pecuniary damage.
Costs and expenses75. The applicants also claimed EUR 77,000 for the costs and expenses incurred before the domestic courts and the Court.
76. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the first applicant the sum of EUR 100 to cover correspondence costs incurred in the proceedings before the Court.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the first applicant’s complaint concerning the retention of his personal documents admissible and the remainder of the application inadmissible;Holds that there has been a violation of Article 8 of the Convention;Holds(a) that the respondent State is to pay the first applicant, within three months, EUR 1,200 in respect of non-pecuniary damage and EUR 100 in respect of costs and expenses, plus any tax that may be chargeable on those amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Dismisses the remainder of the applicants’ claim for just satisfaction.Done in English, and notified in writing on 19 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Mārtiņš Mits
Deputy Registrar President
APPENDIX
List of applicants
No.
Applicant’s Name
Year of birth/registration
Nationality
Place of residence
1.
Borys Oleksandrovych POGREBNYY
1955
Ukrainian
Vasylkiv
2.
KYIV LARGE FAMILIES UNION
Ukrainian
Vasylkiv
3.
MYLOSERDYA
Ukrainian
Vasylkiv
4.
RODYNA
Ukrainian
Vasylkiv
[1] About 1,888 euros (EUR)
[2] About EUR 4,869
[3] About EUR 72
[4] About EUR 45