Published on 3 April 2023
FIFTH SECTION
Application no. 2599/16
Oleksandr Pavlovych KORNIYETS against Ukraine
and 2 other applications
(see table appended)
communicated on 16 March 2023
SUBJECT MATTER OF THE CASE
The applicants in the present cases allege that search and seizure operations carried out in their homes and on their property on various dates in 2015 without court warrants were unlawful, arbitrary and not necessary in a democratic society. The applicants also complain that they had no effective domestic remedies for their complaints. Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1 have been relied on in respect of the above complaints.
Mrs T.M. Zhabo (application no. 6904/16) was hospitalised with various injuries while the search operation in her house was under way. According to her, those injuries had been inflicted by the police officers, who attempted to prevent her from calling a lawyer. A criminal investigation of her domestic complaint about this incident is still ongoing.
It is apparent from the files that the above-mentioned search and seizure operations were carried out by the law-enforcement authorities with reference to Article 233, paragraph 3 of the Code of Criminal Procedure (“the CCP”). This provision empowers the investigative and prosecutorial authorities to enter onto private property and carry out search operations without prior judicial authorisation in “urgent circumstances connected to saving human lives, property or the immediate apprehension of individuals suspected of having committed a criminal offence”.
After the search operations, the law-enforcement authorities obtained ex post facto judicial authorisations for their actions. The applicants note that the investigating judges largely copied the texts of the requests lodged by the law-enforcement officers without analysing whether there had indeed been “urgent circumstances” or whether the scope of the relevant operations had been reasonable or the seizure of various items had been necessary.
It is apparent from the files that the disputed decisions by the investigating judges, which were not subject to appeal, were taken in accordance with a procedure which did not envisage any participation from the applicants’ side.
The applicants have tried, unsuccessfully, to use various avenues of redress for their complaints including filing criminal, constitutional and disciplinary complaints and challenging the actions of the law-enforcement authorities in accordance with the special procedure established by the CCP.
Additional individual details are set out in the Appendix.
QUESTIONS TO THE PARTIES
Questions in respect of all applications1. Have the applicants properly exhausted domestic remedies for their complaints under Article 8 of the Convention?
2. Have there been violations of Article 8 of the Convention on account of the search operations in the applicants’ homes and property? The parties are invited, in particular, to comment on the following matters:
(a) Has the concept of “urgent circumstances” in Article 233, paragraph 3, of the Code of Criminal Procedure been defined in domestic law with sufficient precision to meet the foreseeability requirements?
The Government are invited to provide any police instructions, case-law material and other domestic instruments relevant to the interpretation of the requirement of “urgent circumstances” as defined in Article 233, paragraph 3, of the Code of Criminal Procedure;
(b) Did the applicable domestic framework contain sufficient procedural safeguards for limiting the discretion of the law-enforcement authorities in using the powers conferred on them by Article 233, paragraph 3, for entering and searching the applicants’ homes and property without prior judicial authorisation?
The Government are invited to provide statistics, if any, indicating the percentage of cases in which the investigating judges refused to provide ex post facto authorisations for search operations conducted under the “urgent circumstances” clause.
(c) Have the authorities complied with applicable domestic law in the present cases?
(d) Were the disputed search operations necessary in a democratic society?
3. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 8 of the Convention, as required by Article 13 of the Convention?
Additional questions in respect of applications nos. 2599/16 (by Mr O.P. Korniyets) and 6904/16 (by Mrs T.M. Zhabo)1. Have the applicants exhausted domestic remedies for their complaints under Article 1 of Protocol No. 1 to the Convention?
2. Was the seizure of the applicants’ belongings during the disputed search operations lawful within the meaning of Article 1 of Protocol No. 1 to the Convention? If so, was the seizure of those belongings also necessary in a democratic society?
Additional question in respect of application no. 2599/16 (by Mr O.P. Korniyets)Has the length of the criminal proceedings against the applicant been in breach of the “reasonable time” requirement under Article 6 § 1 of the Convention?
Additional questions in respect of application no. 6904/16 (by Mrs T.M. Zhabo)1. Regard being had to the applicant’s documented injuries and her hospitalisation in the course of the search operation in her house, has she raised in substance a complaint about inhuman or degrading treatment in breach of Article 3 of the Convention and, if so, has she been subjected to such a treatment?
2. Having regard to the procedural aspect of the protection from torture, inhuman and degrading treatment (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV, and Kaverzin v. Ukraine, no. 23893/03, §§ 169-182, 15 May 2012), was the investigation of the applicant’s complaint by the domestic authorities compatible with the requirements of Article 3 of the Convention?
Additional question in respect of application no. 12704/16 (by Mr O.V. Yashchyshen and Mrs O.F. Yashchyshena)Was the inspection carried out by the patrol police in the applicants’ “first flat” lawful and necessary in a democratic society within the meaning of Article 8 of the Convention?
The parties are invited, in particular, to comment on the legal basis for the actions of the patrol police and to provide a fresh and legible copy of the decision taken by an investigative judge on 26 August 2015 validating the search operation in the applicants’ first flat.
APPENDIX
Application no.
Applicant’s name
Year of birth
Place of residence
Represented by
Application date
Facts relevant to the search operations
Other relevant facts
2599/16
KORNIYETS Oleksandr Pavlovych
1972
Kyiv
G.M. Avramenko
A.V. Fedosin
24/12/2015
On 06/07/2015 investigating judge S.Sh. (Pecherskyi District Court, Kyiv) validated the search operation carried out on 05/07/2015 by officers of the General Prosecutor’s Office in the applicant’s house.
Grounds justifying an urgent search: the applicant, a high-ranking prosecutor, and two others were suspected of a conspiracy involving recent receipt of a bribe amounting to USD 150,000 (proceedings instituted on 26/06/2015). Given the applicant’s expertise in investigative methods, the urgent search was necessary to ensure recovery of the bribe money and to secure evidence.
Items seized: over 120 items, including, in particular, files and documents related to the applicant’s professional activity; property certificates; mobile telephones; other IT devices; paper and electronic information carriers; cash in various currencies; jewellery; sixty-five diamonds; firearms; knives; and ammunition.
Attempted remedies: The applicant’s requests to return various items, in particular, those belonging to other family members and irrelevant to the proceedings against him, were rejected on the ground that the court decision validating the search operation included them in the list of items of which seizure was authorised (most recent decision: 01/12/2015, Pecherskyi District Court).
Articles 8, 13 and Article 1 of Protocol No. 1 invoked
Duration of criminal proceedings against the applicant:
26/06/2015 – pending
One level of jurisdiction
6904/16
ZHABO
Tetyana Maksymivna
1958
Rozsoshentsi
29/01/2016
On 31/07/2015 investigating judge O. Sh. (Oktyabrskyi District Court, Poltava) validated the search of the applicant’s car and house carried out on 29-30/07/2015 by the Poltava regional police officers.
Grounds justifying an urgent search: while investigating allegations of bribe-taking against the applicant (proceedings of 18/04/2015), the police discovered, apparently via covert surveillance measures, that on 29/07/2015 a further bribe in the amount of USD 300 had been paid to her.
Items seized: cash in various currencies (equivalent to over EUR 30,000); several IT devices and electronic information carriers; documents related to the applicant’s professional activity; firearms and ammunition.
Other details of the search operation: According to the applicant, the search was conducted at night, by about twenty men in balaclavas, who forcefully entered her yard at 10.30 p.m., refused to identify themselves, twisted the applicant’s husband’s arms to break his resistance, and refused the applicant’s request to call a lawyer.
Attempted remedies: The applicant lodged a criminal complaint: the investigation is still ongoing.
Article 8 and Article 1 of Protocol no. 1 invoked
Alleged ill-treatment:
According to the applicant, in the course of the search operation the police officers did not allow her to leave the room when she needed to drink water or take medication prescribed following a recent heart surgery. One officer punched her in the face and pushed her in the chest demanding that she sit still and make no phone calls.
At 1.45 a.m. on 30/07/2015 an ambulance was called and the applicant was hospitalised and subsequently diagnosed as suffering from a transitory ischaemic attack, a closed cerebral injury, and the right ear contusion.
12704/16
YASHCHYSHEN
Oleksandr Viktorovych
1976
YASHCHYSHENA
Olena Fedorivna
1979
Kyiv
V.V. Yefymenko
22/02/2016
On 26/08/2015 investigating judges V.T. and O.R. (Shevchenkivskyi District Court, Kyiv) validated the search operations carried out on 25/08/2015 by officers of the Shevchenkivskyi district police in two flats which the applicants, husband and wife, used as residences.
Grounds justifying an urgent search: the search operation in the “first flat” was conducted immediately after someone had discharged firearm shots from a window in the block of flats and patrol police officers had caught the first applicant running down the stairs. Firstly, the police had escorted him back to his flat, which they inspected and in which they found firearms and ammunition. After that inspection was finished, an investigator and officers of the Shevchenkivskyi district police arrived and carried out a further inspection in accordance with the formal “search and seizure” procedures. During that operation it was established that the first applicant had an alternative residence, which needed to be searched immediately as various items relevant to the case could potentially be there.
Items seized from the first flat: firearms, ammunition, firearm licences and a mobile telephone.
Items seized from the second flat: payment/discount cards, documents related to the first applicant’s professional activity as a security agent and to his other activities.
Other details of the search operation: Criminal proceedings against the first applicant were instituted after the search operations had been completed.
Attempted remedies: The applicants filed criminal, constitutional and disciplinary complaints arguing that the two search operations that had been validated had been unlawful and disproportionate and that de facto an initial “flat inspection” by the patrol police amounted to a “search operation”, which remained undocumented and unvalidated. The criminal investigation of the applicants’ complaint is still ongoing.
Articles 8 and 13 invoked