Published on 20 February 2023
FIFTH SECTION
Application no. 31175/14
Oleksiy Mykolayovych REZNIK and Others
against Ukraine
lodged on 10 April 2014
communicated on 1 February 2023
SUBJECT MATTER OF THE CASE
The applicants, a family of four, allege that a search operation carried out by the law-enforcement authorities in their residence (which was also a registered office of the third applicant, a lawyer) on 21 November 2013 was neither lawful nor necessary in a democratic society. They invoke Article 8 of the Convention. The third applicant also invokes Article 1 of Protocol no. 1 as regards the allegedly unlawful and unnecessary seizure and retention of his data-storage devices and documents. The applicants additionally complain, under Article 13 of the Convention, that the domestic legal framework provided no effective remedies for them to ventilate their aforementioned Convention complaints.
It appears from the available material that the disputed search was carried out pursuant to a warrant issued on 20 November 2013 by an investigative judge at the Pecherskyi District Court (Kyiv) on the basis of Article 234 of the Code of Criminal Procedure (“CCP”, 2012). That warrant referred to criminal proceedings against some officials of the third applicant’s client (a State-owned IT company) in relation to alleged embezzlement and diversion of State funds and other crimes.
The third applicant challenged, before an investigative judge, the lawfulness of the search warrant and the conduct of the law-enforcement authorities in the course of the search operation within the framework of a special procedure established by Chapter 26 of the CCP (Recourse against decisions, acts or inactivity in the course of the pretrial investigation). Referring, in particular, to the Convention, the national Constitution, and to Article 306 of the CCP, he argued that the warrant was overbroad; that it did not contain sufficient reasons for justifying the necessity of the search operation; that the investigative authorities had committed a number of procedural flaws in its course, in particular, by stripping the applicants of their right to invite a lawyer; and that they had exceeded the scope of the warrant by seizing the applicant’s personal data-storage devices and documents covered by lawyer-client privilege, which were irrelevant to the criminal investigation at stake. He also argued that the search did not comply with the Convention requirements, because the role of the representative of the Bar association called upon to participate in it under Section 23 of the Bar and Advocacy Act (2012) with a view to ensuring the observance of the third applicant’s professional rights and the lawyer-client privilege, was limited to a possibility to file comments and objections, which had no binding effect on the law-enforcement officers.
In response to that complaint, the investigative judge ordered (on 5 March 2014) the return of the disputed documents. He further dismissed the third applicant’s request to return the data-storage devices, having found that the search warrant had specifically authorised their seizure. The decision did not comment on other issues raised by the third applicant.
It appears that the other three applicants did not raise any complaints at the domestic level.
QUESTIONS TO THE PARTIES
1. Have the applicants exhausted the domestic remedies for their complaints under Article 8 of the Convention (all applicants) and Article 1 of Protocol No. 1 (third applicant)?
2. Has there been a violation of Article 8 of the Convention on account of the search operation in the applicants’ home? The parties are invited, in particular, to comment on the following matters:
(a) Did the applicable domestic legal framework at the material time contain sufficient procedural safeguards to protect the privilege of the lawyer‑client relationship during the search operations in lawyers’ homes and offices (compare Golovan v. Ukraine, no. 41716/06, §§ 60-65, 5 July 2012 and see, among recent authorities, Kruglov and Others v. Russia, nos. 11264/04 and 15 others, §§ 125-32, 4 February 2020 with ensuing references and Särgava v. Estonia, no. 698/19, §§ 103-09, 16 November 2021)?
(b) Did the search warrant in the present case cite the reasons, which were “relevant and sufficient” to justify the disputed search operation?
(c) Did the law-enforcement authorities conduct the disputed search operation in accordance with the law and within the limits established by the search warrant? In particular, was the applicants’ right to legal assistance in the course of the search operation observed?
3. Was the seizure and retention of the third applicant’s documents and data-storage devices in compliance with Article 1 of Protocol no. 1 to the Convention?
4. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 8 of the Convention (all applicants) and Article 1 of Protocol no. 1 of the Convention (third applicant), as required by Article 13 of the Convention?
APPENDIX
List of applicants
No.
Applicant’s Name
Year of birth
Nationality
Place of residence
1.
Oleksiy Mykolayovych REZNIK
1954
Ukrainian
Brovary
2.
Tamara Omelyanivna REZNIK
1951
Ukrainian
Brovary
3.
Mykhaylo Oleksiyovych REZNIK
1984
Ukrainian
Brovary
4.
Mykola Oleksiyovych REZNIK
1987
Ukrainian
Brovary