CASE OF ZOSYMOV v. UKRAINE

FIFTH SECTION

CASE OF ZOSYMOV v. UKRAINE

(Application no. 4322/06)

JUDGMENT

STRASBOURG

7 July 2016

FINAL

07/10/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Zosymov v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Angelika Nußberger, President,
Ganna Yudkivska,
Khanlar Hajiyev,
Erik Møse,
André Potocki,
Carlo Ranzoni,
Mārtiņš Mits, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 14 June 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 4322/06) 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 Igor Viktorovych Zosymov (“the applicant”), on 21 January 2006.

2.  The applicant was represented by Ms N.M. Perestyuk, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented, most recently, by their acting Agent, Mrs O. Davydchuk.

3.  The applicant alleged, in particular, that the police had unlawfully searched his office, car and garage; seized his belongings and used them as physical evidence in criminal proceedings to which he had not been party. He also complained that the proceedings had been inordinately lengthy and that there had been no effective remedies available to him for complaining about the above and recovering his seized property.

4.  On 2 January 2012 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  In 1996 the applicant and his wife started a family business which involved, among other things, the replication of digital data and the sale of blank data storage devices. They used a flat on P. Street in Kyiv owned by the applicant’s mother as their office, in which they had copying equipment set up.

A.  Criminal investigation concerning a purported breach of copyright law

6.  On 20 August 2002 several police officers from the Kyiv Economic Crime Unit (“KECU”) inspected the applicant’s office at P. Street in his and his wife’s presence.

7.  On the same date the KECU officers also inspected the applicant’s garage and his car.

8.  After the inspection the police seized seven computers, sixty-six optical disc recording devices, a printer, a modem, over three thousand optical discs with recordings, some thirty thousand blank optical discs and some seven thousand printed disc covers. The seizure was documented on three standardised forms (one for each site inspected), which included the following pre-filled printed text:

Deed of inspection and seizure

“Beginning of the inspection: _______ [time, date]

End of the inspection: _________ [time, date]

I (we), ______ of the KECU on the premises of ______ [site] ... inspected and seized from _________ [name, address, place of work of the person whose possessions were subject to seizure] the following ________ [list of seized items].

The seized items will be stored with the KECU pending resolution of the matter on the merits.

This Deed has been completed in duplicate and read out. ...”

9.  It appears from the forms that the inspection of the office started at 7.30 p.m. and ended at 7.30 a.m. the following morning, 21 August 2002. Other sites were inspected at the same time – the car from 7.30 p.m. until 1.34 a.m. and the garage between10.25 and 11.45 p.m.

10.  According to the applicant, for the whole night the police officers questioned him, his wife and the members of their extended family who were on the premises. The questions related to the applicant’s family business and the observance of copyright law in the business’s use of software and in its replicating activities.

11.  On 22 August 2002 a report was published on the Ministry of Interior’s website, which stated that the Kyiv Police had:

“... identified a criminal group of two [individuals]. These two [individuals] organised an entire underground production [facility] in their office. With the help of computer equipment they replicated CD-ROMs containing various programs and games ...”

12.  The report also featured a photograph of the applicant’s wife without a caption and listed the seized items, declaring their estimated value as 117,000 Ukrainian hryvnias (UAH).

13.  On 15 November 2002 investigator O.K. from the Investigative Department of the Kyiv Police instituted criminal proceedings concerning “the suspected breach of copyright” under Article 176 of the Criminal Code of Ukraine, without naming any suspected offenders. In his decision, he referred to the search of the office of the applicant and his wife and the seizure of their belongings on 20 August 2002. He further noted that they had been found not to have a license agreement with the law firm S., the official representative of the Microsoft Corporation, whose software they had used in their business, thereby causing damage to the software copyright owner.

14.  On 20 November 2002 O.K. declared the property seized from the applicant and his wife as physical evidence to be stored by the police pending the investigation of the case.

15.  On 21 November 2002 the Shevchenkivsky District Court of Kyiv (hereinafter “the District Court”) issued search warrants in respect of the applicant’s and his wife’s flats, noting that they were suspected of breaching criminal legislation concerning copyright protection.

16.  On 23 November 2002 these flats were searched pursuant to the warrants. It appears from the case file that no items were seized.

17.  As follows from the applicant’s submissions, after these searches and several interviews, the proceedings stagnated, with the police never pressing any charges against the applicant or any other person.

18.  On numerous occasions the applicant asked the police and the prosecutor’s office to order the return of his seized property. On various dates (in particular 24 February 2003, 11 August 2003 and 13 May 2005) the respective authorities rejected his requests, notifying him that his seized property constituted physical evidence in a criminal case, that keeping it in the possession of the authorities was justified by the need to carry out expert assessments and that, more generally, in accordance with Article 81 of the Code of Criminal Procedure 1960 (“the CCP”), the fate of the items had to be determined upon the final resolution of the case.

19.  On 27 September 2004 the Kyiv prosecutor’s office rejected a request by the applicant to have the criminal case in which his possessions had been seized transferred to court with a view to having the proceedings closed as time-barred. They noted, in particular, that proceedings could only be terminated on such grounds in cases in which a particular person had been indicted.

20.  On 25 February 2005 the police rejected a request by the applicant to have the criminal proceedings discontinued for lack of corpus delicti, noting that discontinuing proceedings on such grounds also presupposed the identification of a particular defendant.

21.  On 4 April 2004 the police informed the applicant in response to his complaint about being denied any status in the criminal proceedings – which, in his view, concerned him as a de facto suspect – that there were no grounds for instituting a criminal case against him personally. There was insufficient evidence that he had unlawfully replicated copyrighted materials or distributed counterfeit products.

22.  In March 2006 the criminal proceedings were still pending. No investigative measures concerning the applicant had been ordered. His property remained in the control of the police as physical evidence in the case.

23.  In their subsequent submissions – the last correspondence from the applicant’s lawyer and the Government was received in March and June 2013 respectively – the parties did not provide any further information concerning the outcome or status of the aforementioned criminal proceedings and the fate of the seized items.

B.  The applicant’s complaints and court actions against the police

1.  Defamation proceedings

24.  On an unspecified date the applicant and his wife instituted defamation proceedings against the police authorities for publishing an inaccurate crime report on their website (see paragraph 11 above), seeking the retraction of the information contained therein.

25.  On 27 October 2003 the District Court allowed the claim.

26.  It follows from the case file that this judgment was not appealed against and became final.

2.  Criminal complaint

27.  On 22 August 2003 the prosecutor’s office rejected the applicant’s request for criminal proceedings to be instituted against three KECU officers who had taken part in the search of his office, car and garage and had seized his property. It was noted in the relevant decision, in particular, that the police officers had not “searched” but “inspected” the applicant’s office and other sites. The inspection had been lawful, as it had been carried out in the police officers’ competence to carry out investigative and operational activities for the purpose of crime detection within the meaning of the Law of Ukraine “On operational and investigative activities” and with the applicant’s and his wife’s consent.

28.  On 13 October and 4 December 2003 respectively the Pecherskyy District Court and Kyiv City Court of Appeal (“the Court of Appeal”) rejected appeals by the applicant against that decision.

3.  Civil proceedings with a view to recovering the seized property

29.  On an unspecified date the applicant instituted civil proceedings in the Shevchenkivskyy District Court in Kyiv to reclaim his computer equipment, optical discs and other property seized by the police.

30.  On 10 October 2003 the court suspended these proceedings pending resolution of the criminal case in which the property had been retained by the police (see paragraphs 13-23 above).

4.  Proceedings under Article 234 of the CCP

31.  In April 2003 the applicant lodged a complaint against the Investigative Department of the Kyiv Police with the District Court. Initially referring to Article 248 of the Code of Civil Procedure 1963 in force at the material time, he alleged, in particular, that the inspection of his office and search and seizure of his property in August 2002, as well as the institution of criminal proceedings on 15 November 2002 had been unlawful.

32.  In court the applicant reformulated his claims. Referring to Article 234 of the CCP (see paragraph 46 below) he contended that there had been no lawful grounds for instituting the criminal proceedings concerning the suspected breach of copyright. He requested that the investigator’s decision of 15 November 2002 (see paragraph 13 above) be set aside. In this respect the applicant submitted, in particular, that on 20 and 21 August 2002 KECU officers had conducted an arbitrary search and seizure of his property without a court warrant or any other lawful grounds for taking such actions. The applicant argued that there was no reason to suspect that a crime had been committed justifying the search and seizure of his belongings; that, in breach of the applicable law, the measures had been taken at night-time; that the same people had been appointed as lay witnesses for all three sites, which had been inspected all at the same time; and that following the institution of the criminal proceedings he had not been summoned to participate in any investigative activities. The proceedings at issue had been instituted in bad faith, to prevent him from recovering his seized property and to cover up the unlawful conduct of the KECU.

33.  On 26 June 2003 the District Court found that Article 234 of the CCP (not Article 248 of the Code of Civil Procedure 1963) was the appropriate provision for examining the applicant’s allegations. It rejected them, finding that the applicant lacked standing to bring the proceedings. In particular, the disputed criminal case had been instituted “into the matter” rather than “against the applicant” (see paragraph 46 below quoting Article 98 of the Code of Criminal Procedure), who had neither been a formal suspect nor a defendant in the proceedings at issue. He could not therefore claim that his rights had been breached by the institution of the proceedings. As regards his complaints concerning the allegedly unlawful actions of the police, in accordance with Article 234 of the Code of Criminal Procedure, these complaints could be brought only within the framework of the above-mentioned criminal case and fell to be examined by the court which would try that case, during either the preliminary hearing or trial.

34.  The applicant appealed, stating in particular that he had been a de facto suspect in the proceedings at issue. As he had been denied formal status as a suspect, he could not defend himself properly. In addition, as the proceedings had been artificially protracted, he had been deprived of the opportunity to reclaim his seized property pending resolution of the case.

35.  On 17 September 2003 the Court of Appeal quashed the District Court’s decision and decided to discontinue the proceedings. Like the lower court, it considered that the applicant had no standing to bring the proceedings at issue and, more generally, that the actions of the police authority complained of could only be challenged before the court examining the criminal case, after the relevant investigation had been completed and the case transferred to the court for examination. In these circumstances, rather than rejecting the applicant’s complaints on the merits, the proceedings had to be discontinued.

36.  The applicant appealed on points of law.

37.  On 13 July 2004 the Supreme Court of Ukraine quashed the previous decisions and remitted the case to the lower courts for fresh consideration. It noted, in particular, that on 30 January 2003 the Constitutional Court of Ukraine had found that the provisions of Article 234 of the CCP, which had made it impossible to appeal separately against decisions of investigative authorities concerning the institution of criminal proceedings, were unconstitutional (see paragraph 47 below). The foregoing ruling also meant that courts should likewise admit for consideration complaints about other procedural actions, decisions or inaction on the part of investigative authorities, which could result in irreparable or grave damage to an individual’s constitutional rights if their judicial review were to be delayed. The Supreme Court further noted that there was sufficient evidence to suggest that the applicant had been substantially affected by the criminal proceedings at issue – in particular, with regard to the search of his premises and the seizure and retention of his belongings. It stated that the proceedings appeared to be protracted without any justification and instructed the lower courts to verify whether the conduct of the investigative authorities could indicate ulterior motives aimed at concealing unlawful actions on their part.

38.  On 14 October 2004 the District Court allowed the applicant’s complaint and revoked the decision of 15 November 2002. Regard being had to the grounds for taking that decision, the proceedings should have been instituted against the applicant, who had been a de facto suspect in relation to breach of copyright. Institution of the proceedings “into the matter” without indicating a specific defendant had been artificial and had restricted the applicant’s procedural rights. The police officers’ actions which had led to the institution of the proceedings had been tainted by procedural breaches, regard being had, in particular, to the unjustified inspection of the premises at night-time in the absence of the flat owner (the applicant’s mother ), as well as various other procedural violations.

39.  On 3 November 2004 the Kyiv prosecutor’s office appealed against that decision.

40.  On 24 December 2004 the Court of Appeal quashed the District Court’s decision and remitted the criminal case concerning the suspected breach of copyright to it for further investigation. By assessing the lawfulness of the investigative actions, the District Court had in fact touched upon the admissibility of evidence, a matter which could only be examined in the course of a criminal trial. It further found that by instituting the criminal proceedings “into the matter” rather than “against the applicant”, the police had not caused irreparable damage to the applicant’s constitutional rights such as would necessitate the setting aside of their decision by way of judicial proceedings. Any irregularities in the formulation of the decision to institute criminal proceedings could be more appropriately addressed by the prosecution authorities.

41.  The applicant appealed on points of law, alleging in particular that the Court of Appeal had breached procedural rules in admitting the appeal of the prosecutor’s office.

42.  On 25 July 2005 Justice V.P. of the Supreme Court refused to consider the applicant’s request for leave to appeal on points of law, stating that the Supreme Court lacked jurisdiction over the decisions taken by the Court of Appeal in the relevant matters, unless they concerned the termination of proceedings.

II.  RELEVANT DOMESTIC LAW

A.  Constitution of Ukraine 1996

43.  Article 30 provides:

Article 30

“Everyone shall be guaranteed the inviolability of his or her dwelling.

Any entry into, examination of or search in the dwelling or other possession of a person shall not be permitted other than pursuant to a reasoned court decision.

In urgent cases connected with the rescuing of human life and preservation of property or with the direct pursuit of criminal suspects, the law may provide for a different procedure for entering into, examining or searching in the dwelling or other possession of a person.”

B.  Code of Civil Procedure 1963

44.  The relevant provisions of the Code of Civil Procedure 1963 in force at the material time have been summarised in the Court’s decision in the case of Ulyanov v. Ukraine ((dec.), no. 16472/04, 5 October 2010).

C.  Code of Criminal Procedure 1960 (CCP)

45.  The relevant provisions of Articles 110, 177 and 178 of the CCP have been summarised in the Court’s decision in the case of Ulyanov v. Ukraine ((dec.), cited above).

46.  Other relevant provisions of the CCP read as follows:

Article 81.  Resolution of issues concerning physical evidence

“Issues concerning physical evidence shall be decided in the judgment, decision or ruling of the court or ruling of the body of inquiry, the investigator, [or] the prosecutor on the discontinuation of the case ...”

Article 98.  Procedure for the institution of proceedings

“... In the event that by the time of the institution of the criminal case the person who committed the offence has been identified, the proceedings should be instituted against that person ...”

Article 180.  Time for carrying out of search and seizure

“Searches and seizures, save for in urgent situations, shall be carried out during daytime.”

Article 234.  Complaining about the actions of an investigator

“The actions of an investigator can be complained about to the prosecutor ...

The actions of an investigator can be complained about to the courts.

Complaints about the actions of an investigator shall be considered by the court of first instance during the preliminary consideration of the case or during trial, unless otherwise envisaged by this Code.”

D.  Ruling of the Constitutional Court of Ukraine of 30 January 2003

47.  The relevant parts of the ruling read as follows:

“... [T]he institution of a criminal case against a particular person taken in breach of the requirements of the Code of Criminal Procedure of Ukraine ... may ... cause such damage to the constitutional rights and freedoms [of that individual] as a result of untimely judicial supervision that their restoration becomes impossible.

Making it impossible for the court to consider complaints against a decision to institute criminal proceedings against a particular person during the pre-trial investigation stage, [and] postponement of their examination by the court until the preliminary hearing of the criminal case or trial, [would] delay judicial supervision and restrict the constitutional human right of access to justice, which is the guarantee of all [other] rights and freedoms of a citizen.

...

Appeals to a court against the decisions of the investigator and the prosecutor to institute criminal proceedings against a particular person shall be examined by the court under the rules of criminal procedure. The court, [if] examining such appeals during the pre-trial investigation stage, shall examine the existence of reasons and grounds for taking such a decision and shall not examine and decide in advance such matters that the court should decide during the criminal trial, as this would be in breach of the constitutional foundations of justice.

...

The Constitutional Court holds:

...

2.  To declare unconstitutional the provisions of ... Article 234 ... of the Code of Criminal Procedure of Ukraine that make it impossible for the court to consider appeals at the pre-trial investigation stage against the decisions of the investigator ... concerning the reasons and grounds for and procedure concerning the institution of a criminal case against a particular person ...”

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

48.  The applicant complained that his office, car and garage had been unlawfully and arbitrarily searched by the KECU. He relied on Article 8 of the Convention, the relevant parts of which read as follows:

“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.”

A.  Admissibility

49.  The Government argued that the six-month period for lodging the present complaint had not been observed. In their view, this period had started to run from the date of the alleged interference (20 August 2002), as at the material time there had been no effective domestic remedies for the applicant’s complaint. Among other things, there had been no effective mechanism for the applicant in his situation to claim monetary compensation for the police’s actions.

50.  The applicant agreed that all the domestic remedies he had tried to avail himself of had proved to be ineffective in his case. However, in his view, it had not been obvious from the start that his efforts would be doomed to fail. He should not therefore be reproached for attempting to exhaust them. As regards monetary compensation, this matter had been of secondary importance to him as his primary goal had been to obtain recognition that the police had acted in contravention of the law and to clear himself of any criminal accusations.

51.  The Court reiterates that in accordance with Article 35 § 1 of the Convention, it may only deal with a matter within a period of six months of the final decision in the process of exhaustion of domestic remedies. If no remedies are available or if those available are judged to be ineffective, the six-month period in principle runs from the date of the act complained of (see, among other authorities, Vladimir Polishchuk and Svetlana Polishchuk v. Ukraine, no. 12451/04, § 38, 30 September 2010). Where an applicant has tried to avail himself of a remedy that the Court considers inappropriate, the time taken to do so will not interrupt the running of the six-month time limit and this may lead to the application being rejected as lodged out of time (see, among other authorities, Ulyanov (dec.), cited above). However, where an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render it ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant first became or ought to have become aware of those circumstances (see, in particular, Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 157, ECHR 2009; Volokhy v. Ukraine, no. 23543/02, § 37, 2 November 2006; and Ratushna v. Ukraine, no. 17318/06, § 62, 2 December 2010).

52.  Turning to the facts of the present case, the Court observes that the application was lodged in 2006, whereas the alleged violation of the applicant’s rights under Article 8 of the Convention took place in 2002.

53.  The applicant took a number of steps attempting to obtain redress at the domestic level. For instance, his allegations, which served as the basis for his complaint under Article 8 of the Convention in the proceedings before it, were accepted for examination by the domestic courts on the basis of Article 234 of the then current legislation, the Code of Criminal Procedure 1960. Having regard to the conflicting views expressed by the domestic courts in examining that complaint, and especially, to the positions taken by the Supreme Court in its ruling of 13 July 2004 and the District Court in its decision of 14 October 2004 (see paragraphs 37 and 38 above), the Court cannot conclude that the applicant had attempted to use a remedy which was obviously ineffective (compare and contrast with Ulyanov (dec.), cited above).

54.  The Court also notes that the above-mentioned proceedings could potentially lead to the revocation of the decision to institute criminal proceedings, in which the applicant considered himself to be a de facto suspect, and acknowledgment that his rights had been breached, which is an essential element of redress within the meaning of Article 35 of the Convention (see, mutatis mutandis, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, §§ 83 and 88, ECHR 2012). In view of this, and regard being had to the actual outcome of those proceedings, the Court does not consider it necessary to address the Government’s argument concerning the alleged inability for the applicant to obtain monetary compensation in these or any other domestic proceedings.

55.  Consequently, the Court finds that the applicant can be regarded as having legitimately raised the matter under Article 8 at the domestic level and that those procedural steps should not be held against him when deciding the question of the admissibility of the relevant Convention complaint. The present application was lodged on 21 January 2006, that is, within six months of the termination of the relevant domestic proceedings on 25 July 2006 (see paragraph 42 above). The Court therefore rejects the Government’s objection concerning non-compliance with the six-month rule.

56.  The Court next notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further considers that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

57.  In his application to the Court, the applicant alleged that the police had searched his office, car and garage without any legal basis for doing so.

58.  The Government did not provide any observations on the merits of the present complaint.

59.  The Court notes that the relevant deeds documenting the police’s presence in the applicant’s office, car and garage refer to this presence as “inspection” rather than “search” (see paragraph 8 above). It considers that whatever was the domestic qualification of the disputed action, for the purposes of the Convention it amounted to “interference” with the applicant’s right to respect for his home (see, in particular, Niemietz v. Germany, 16 December 1992, § 30, Series A no. 251‑B; and Panteleyenko v. Ukraine, no. 11901/02, § 47, 29 June 2006 as regards the applicability of Article 8 to searches of non-residential premises and, mutatis mutandis, Belousov v. Ukraine, no. 4494/07, §§ 102 and 105-107, 7 November 2013 classifying an “inspection” under domestic law as interference within the meaning of Article 8).

60.  The next question is whether the interference complained of was justified under Article 8 § 2. In this connection, the Court reiterates that in order to comply with Article 8 § 2, the interference must, among other things, be “in accordance with the law”; that is, it should have some basis in domestic law and be compatible with the rule of law (see, among other authorities, Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 95, ECHR 2008, and Belousov, cited above, § 104). In matters affecting fundamental rights, it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise (see, among other authorities, Gillan and Quinton v. the United Kingdom, no. 4158/05, § 77, ECHR 2010 (extracts), with further references). The existence of specific procedural safeguards is material in this context. What is required by way of safeguard will depend, to some extent at least, on the nature and extent of the interference in question (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 46, ECHR 2001-IX). In various contexts of Article 8 of the Convention, the Court has emphasised that measures affecting human rights must be subject to some form of adversarial proceedings before an independent body competent to review in a timely fashion the reasons for the decision and the relevant evidence (see, as a recent authority, Kotiy v. Ukraine, no. 28718/09, § 68, 5 March 2015).

61.  Turning to the facts of the present case, the Court notes that it follows from the case file that the police visit complained of had not been subject to prior authorisation by any independent judicial authority. The only relevant document obtained by the applicant from the police in justification of the visit – the “deed of inspection and seizure” — did not refer to any legal provisions serving as a basis for the visit and determining the scope of the powers of the officers involved (see paragraph 8 above). The applicant’s efforts to obtain subsequent judicial review of the lawfulness of the measure were unsuccessful. In particular, as follows from the judgment of 24 December 2004 taken by the Court of Appeal, the relevant complaint could only be brought within the framework of the criminal trial of the case initiated by the police following the disputed visit, in the event that the investigative authority ever brought the case to that stage. In the meantime, by the time the applicant lodged the present application, the relevant criminal proceedings had remained stagnant for several years, and the applicant had not been able to obtain any procedural status in these proceedings, in spite of his numerous efforts. The Court notes that in its recent judgment in the case of Kotiy (cited above, §§ 69-70) it has already found that a situation where the only possibility for the applicant to challenge the investigator’s conduct had been under Article 234 of the CCP (after the criminal case against him had been committed for trial) was incompatible with Article 8.

62.  The Court considers its findings in Kotiy equally pertinent in the present case. In particular, it concludes that domestic law did not provide requisite guarantees against arbitrariness in respect of the police’s actions complained of and did not meet the requirement of quality of law for the purposes of the Convention. Accordingly, the interference in question was not “in accordance with the law” as required by Article 8 § 2 of the Convention.

63.  These findings are sufficient for the Court to conclude that there has been a breach of Article 8 of the Convention.

II.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1

64.  The applicant further complained that his property had been unlawfully seized and retained by the police. He relied on Article 1 of Protocol No. 1 to the Convention, the relevant parts of which read as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A.  Admissibility

65.  The Government alleged that the applicant had not exhausted the available domestic remedies. Referring to the Court’s inadmissibility decision in the case of Solaz v. Ukraine (no. 35184/02, 12 June 2006), they noted that his complaint was premature as the criminal proceedings in which the disputed property had been retained were pending. Accordingly, the question of returning the seized possessions to the applicant had to be decided in compliance with Article 81 of the CCP, upon the resolution of the relevant criminal case.

66.  The applicant submitted that the Solaz case could be distinguished from his on a number of grounds. In particular, in his case the proceedings had been stagnant for years. The police had not been interested in identifying any defendants, and it had been impossible for him to obtain any procedural status in the proceedings. Moreover, there were no reasonable prospects that the proceedings would ever be either brought to court or terminated by the investigative authority.

67.  In the Court’s view, the question of exhaustion of domestic remedies is closely linked to the merits of the applicant’s complaint under Article 13 of the Convention that he lacked effective remedies in respect of the alleged interference with his property rights (see East West Alliance Limited v. Ukraine, no. 19336/04, § 148, 23 January 2014). Accordingly, it holds that the question of exhaustion of domestic remedies should be joined to the merits of the applicant’s relevant complaint under Article 13 (see paragraphs 93-97 below).

68.  The Court next notes that the present complaint is not otherwise manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further considers that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

69.  In his application form, the applicant complained that his computer equipment, data storage devices and other possessions (see paragraph 8 for more details) had been arbitrarily seized and retained by the police as physical evidence in artificially initiated criminal proceedings, which had not been intended to be brought to trial.

70.  The Government did not provide any comments on the merits of the applicant’s complaints.

71.  The Court notes that it is not disputed in the present case that the items seized by the police from the applicant’s office, car and garage and joined as physical evidence to the criminal proceedings constituted his possessions for the purposes of Article 1 of Protocol No. 1.

72.  The Court considers that the impugned measures constituted an interference falling within the scope of the second paragraph of Article 1 of Protocol No. 1 concerning “control of the use of property” (see, for example, Plakhteyev and Plakhteyeva v. Ukraine, no. 20347/03, § 53, 12 March 2009, and East West Alliance Limited, cited above, § 185).

73.  In this connection, the Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful (see Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999‑II). The requirement of lawfulness for the purposes of Article 1 of Protocol No. 1, like for the purposes of Article 8 discussed above, presupposes compliance with the relevant provisions of domestic law and compatibility with the rule of law, which includes freedom from arbitrariness (see, among other authorities, Smirnov v. Russia, no. 71362/01, §§ 55-56, 7 June 2007, and Koval and Others v. Ukraine, no. 22429/05, § 125, 15 November 2012).

74.  The Court notes that the case file contains no documents on the basis of which the exact legal basis for the seizure of the applicant’s possessions can be established. It finds that the considerations advanced above (see paragraph 61)  which have led the Court to the conclusion that the inspection of the applicant’s office, car and garage had been unlawful within the meaning of Article 8 – are equally pertinent to the complaint at issue. Accordingly, it considers that the seizure of the applicant’s belongings was unlawful for the purposes of Article 1 of Protocol No. 1.

75.  As regards the subsequent retention of the seized possessions by the police as physical evidence in the criminal proceedings, it appears from the case file that the measure was provided for by Article 81 of the CCP (see paragraph 46 above).

76.  In various earlier cases, the Court has found that the retention of property as physical evidence in criminal proceedings may be necessary in the interests of the proper administration of justice, which is a legitimate aim in the “general interest” of the community (see Smirnov, cited above, § 57, and East West Alliance Limited, cited above, § 188). At the same time, there must also be a reasonable relation of proportionality between the means employed and the aim sought to be realised by any measures applied by the State, including those designed to control the use of the individual’s property. That requirement is expressed by the notion of a “fair balance” that must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see, for example, Edwards v. Malta, no. 17647/04, § 69, 24 October 2006, with further references and Smirnov, cited above).

77.  From the material available, it appears that the only way for the applicant to reclaim his possessions was to await the outcome of the criminal proceedings in which they remained retained and which, in effect, had been dormant without any prospects of progress for over four years by the date the present application was lodged with the Court. Domestic law, as interpreted by the competent judicial authorities, did not provide the applicant with any remedies for challenging the need for that retention, either initially (for instance, the retention of large quantities of blank optical discs) or after a lapse of time (for instance, on the grounds that the proceedings had stagnated and no investigative activities had been carried out with the retained items).

78.  In sum, regard being had to the considerations advanced in paragraphs 74 and 77 above, the Court finds that the applicant could not subject the seizure and continued retention of his property to the scrutiny of an independent authority with a view to assessing their lawfulness and proportionality in a timely manner and affording him the requisite procedural safeguards.

79.  Accordingly, Article 1 of Protocol No. 1 has been breached in the present case.

III.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION (CRIMINAL LIMB)

80.  The applicant also complained that the criminal proceedings instituted following the police’s visit to his office, car and garage had been inordinately lengthy. He referred to Article 6 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations or any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

81.  The Government alleged that this complaint was inadmissible ratione personae, as the applicant had no standing in the proceedings at issue.

82.  The applicant disagreed. In his view, he had been a de facto suspect in the proceedings and charges against him could have been pressed at any moment.

83.  The Court reiterates that in criminal matters, the “reasonable time” referred to in Article 6 normally begins to run as soon as a person is “charged” (see, for example, Eckle v. Germany, 15 July 1982, § 73, Series A). “Charge”, for the purposes of Article 6, may be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, a definition that also corresponds to the test whether “the situation of the [suspect] has been substantially affected” (see Deweer v. Belgium, 27 February 1980, § 46, Series A no. 35; and Eckle, cited above). In some contexts, having regard to the material circumstances affecting an applicant’s standing in the proceedings, the Court has already found that an applicant acquired the status of a suspect for Convention purposes before this status had been formally assigned in accordance with domestic law (see, for example, Brusco v. France, no. 1466/07, §§ 47-50, 14 October 2010).

84.  Turning to the facts of the present case, the Court notes that the proceedings complained about started in 2002. From the material available, it follows that the applicant was interviewed by the police on some unspecified occasions and was once referred to as “a suspect” in a search warrant (see paragraphs 15-17 above). However, by the time the application was lodged in January 2006, no formal charges had been pressed against him after the proceedings had been formally pending for a period exceeding four years. Furthermore, by that time the authorities had explicitly stated on a number of occasions that there were no sufficient grounds for suspecting the applicant of having committed any offence (see paragraphs 19-21). As of March 2006 no investigative measures concerning the applicant had been ordered (see paragraph 22). In their subsequent correspondence, the parties never informed the Court of any further developments in those proceedings (see paragraph 23 above). Based on the materials presented to it, the Court cannot conclude that the manner, in which the disputed proceedings affected the applicant, made his personal situation comparable to that of a suspect in criminal proceedings.

85.  Accordingly, in the Court’s view, this complaint should be rejected as manifestly ill-founded within the meaning of Article 35 § 3(a) of the Convention.

IV.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

86.  The applicant also alleged that the police had purposefully delayed the criminal proceedings to cover up the unlawful search, seizure and retention of his property and that there had been no way for him to obtain redress for this situation. In this connection, he referred to Article 6 § 1 and Article 13 of the Convention. Article 13 reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

87.  The Government maintained that Article 6 under its civil limb was inapplicable to the criminal proceedings at issue.

88.  The applicant disagreed.

89.  The Court notes that the applicant was not party to the proceedings complained of. His only argument under the civil limb of Article 6 concerned his inability to reclaim his property as long as the proceedings at issue were pending. In these circumstances, the Court, being master of characterisation to be given in law to the facts of the case, considers that the present complaint falls to be examined solely under Article 13 of the Convention.

A.  Admissibility

90.  The Court observes that Article 13 has been consistently interpreted in its case-law as requiring a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, as a classic reference, Boyle and Rice v. the United Kingdom, 27 April 1988, § 54, Series A no. 131).

91.  In view of the considerations expressed in paragraphs 85 and 89 above, the Court notes that the guarantees of Article 13 are inapplicable to the applicant’s complaint under Article 6 concerning the length of proceedings.

92.  At the same time, regard being had to the Court’s findings in paragraphs 56 and 68 above that the applicant had made out arguable claims under Article 8 of the Convention and Article 1 of Protocol No. 1, it finds that his complaint under Article 13 must be declared admissible in respect of these two provisions.

B.  Merits

93.  The Court reiterates that Article 13 of the Convention guarantees the availability, at national level, of a remedy to enforce the substance of Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s substantive complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law; in particular, its exercise must not be unjustifiably hindered by the actions or omissions of the authorities of the respondent State (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000‑XI and East West Alliance Limited, cited above, § 227).

94.  The Court refers to paragraphs 61-63, 74 and 77-78 above, in which it has already found that domestic law, as interpreted by the competent courts, did not contain any procedural safeguards enabling the applicant to challenge the actions of the police which, in his view, violated his rights under Article 8 of the Convention and Article 1 of Protocol No. 1. In so far as the Government contended that the applicant should have awaited the outcome of the criminal proceedings initiated after the police visit to his office, car and garage, the Court reiterates that from the material available, it appears that the proceedings had been stagnant for over four years by the date the application was lodged.

95.  In the Court’s view, the foregoing considerations are sufficient to conclude that the applicant had no effective domestic remedies available to him in connection with his complaints under Article 8 of the Convention and Article 1 of Protocol No. 1.

96.  Accordingly, there has been a breach of Article 13 of the Convention.

97.  In this connection, the Court dismisses the Government’s objection regarding the admissibility of the applicant company’s complaint under Article 1 of Protocol No. 1 based on the non-exhaustion of domestic remedies, which was previously joined to the merits of its complaint under Article 13 of the Convention (see paragraph 67 above).

V.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

98.  The applicant also complained under Articles 8 and 13 of the Convention that the publication on the Ministry of Interior’s website (see paragraph 11 above) had been defamatory. He also cited Article 14 of the Convention and Article 2 of Protocol No. 7, referring to the facts of the present case.

99.  Having examined these complaints in the light of all the material before it, 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 provisions on which the applicant relied.

100.  It follows that this part of the application is manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.

VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

101.  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.”

A.  Damage

102.  The applicant claimed 34,794 euros (EUR) as the estimated market value of his seized possessions and EUR 11,659 as his estimated loss of profits in 2002 by way of pecuniary damage. In addition, he also claimed EUR 150,000 in non-pecuniary damage.

103.  The Government submitted that the applicant’s claims were exorbitant and unsubstantiated and that there had been no causal link between the breaches complained of and the damages claimed.

104.  The Court finds that the applicant did not duly substantiate his calculations concerning the value of his seized assets or loss of profit, which would have enabled it to make conclusions as to the relevant amounts. Moreover, it was neither argued nor shown in the case material that the seized property has become unrecoverable. In fact, after lodging the present application in 2006, the applicant, who was represented by a lawyer, never updated the Court on the progress of the pertinent criminal proceedings or the further fate of the property retained in them as evidence. Accordingly, the Court considers that his claims concerning pecuniary damage must be rejected as speculative.

105.  At the same time, ruling on an equitable basis, the Court awards the applicant EUR 6,000 in respect of non-pecuniary damage.

B.  Costs and expenses

106.  The applicant also claimed EUR 1,000 for the legal fees allegedly owed by him to his counsel, Ms N.M. Perestyuk, in accordance with a verbal contract for his representation before the Court, concluded between the parties in 2006.

107.  The Government submitted that this claim was wholly unsubstantiated, as it was not supported by any documents.

108.  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 are reasonable as to quantum. In the present case, regard being had to the applicant’s failure to provide any documents in support of his claim, the Court dismisses it in full.

C.  Default interest

109.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Decides to join the Government’s objection as to the exhaustion of domestic remedies in respect of the applicant’s complaint under Article 1 of Protocol No. 1 to the merits of his complaint under Article 13 of the Convention, and dismisses it having examined the merits of that complaint;

2.  Declares the complaints concerning the allegedly unlawful search (inspection) of the applicant’s office, car and garage; the seizure and retention by the police of his possessions; and his inability to make his relevant complaints admissible, and the remainder of the application inadmissible;

3.  Holds that there has been a violation of Article 8 of the Convention;

4.  Holds that there has been a violation of Article 1 of Protocol No. 1;

5.  Holds that there has been a violation of Article 13 of the Convention on account of the absence of effective domestic remedies for the applicant’s complaints under Article 8 of the Convention and Article 1 of Protocol No. 1;

6.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,000 (six thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

7.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 7 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekAngelika Nußberger
RegistrarPresident

Full & Egal Universal Law Academy