Published on 26 June 2023
FIFTH SECTION
Applications nos. 27496/18 and 30291/18
Boryslav Solomonovych ROZENBLAT against Ukraine
lodged on 6 June 2018 and 13 June 2018 respectively
communicated on 7 June 2023
SUBJECT MATTER OF THE CASES
The applications concern a search and seizure of the applicant’s belongings without prior judicial authorisation (application no. 27496/18), as well as the obligation to wear an electronic tracking bracelet and withholding his travel documents (application no. 30291/18). The applicant raises complaints in that regard under Articles 8 and 13 of the Convention, as well as Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4.
At the material time the applicant was a member of the Ukrainian Parliament (Verkhovna Rada) elected from the Zhytomyr region known for its rich amber deposits. On 28 November 2016 a criminal investigation was opened into suspected corruption in the Verkhovna Rada with a view to ensuring favourable treatment to a particular company in getting license for amber extraction and export. In relation to those events, in July 2017 the Verkhovna Rada lifted the applicant’s immunity against criminal prosecution, and he was served with a notice of suspicion of trading in influence following a conspiracy by a group. The investigating judge set bail as a preventive measure in respect of the applicant and ordered a number of additional obligations and restrictions. They expired on 17 October 2017.
On 19 October 2017 the applicant planed a several-day trip to Germany, of which he had informed the National Anti-Corruption Bureau (“the NABU”) as the authority in charge of the investigation. When the applicant was already in the airplane about to leave, several officials of the NABU entered the airplane and announced their intention to carry out “an urgent search under Article 233 § 3 of the Code of Criminal Procedure related to saving property which might be material evidence in the criminal investigation”[1]. After the applicant showed his belongings as instructed, the NABU officials seized the bank cards in his possession, his passport and other travel documents, several jewelry items, a mobile telephone and a laptop. The investigator subsequently recognized the seized items as material evidence in the criminal investigation, and the investigating judge issued ex post facto judicial authorisation for the search of 19 October 2017 mainly repeating the NABU’s reasoning and containing the list of the items seized.
On 20 October 2017 the investigating judge imposed the same obligations and restrictions on the applicant as those, which had expired on 17 October 2017 (wearing an electronic tracking bracelet, respecting summonses, seeking prior authorisation for leaving Kyiv and Zhytomyr, informing the authorities of any changes in the place of residence or work, and abstaining from communication with specific persons, as well as retention by the authorities of the applicant’s passports and other travel documents). On 14 December 2017 those obligations and restrictions were extended until 11 February 2018. On 9 February 2018 the investigating judge granted in part the prosecutor’s application for another such extension: all the obligations and restrictions, except for the obligation to wear an electronic tracking bracelet, were extended until 9 April 2018. In a similar ruling of 5 April 2018, following yet another application for extension by the prosecutor, the investigating judge refused to extend the period of the retention by the authorities of the applicant’s passports and travel documents, having held that they would hamper the applicant’s professional activities of a Member of the Parliament. He, however, extended until 3 June 2018 the applicant’s obligations to respect summonses, to inform the authorities of any changes in the place of residence or work, and to abstain from communication with specific persons.
On 24 August 2018 the pre-trial investigation was completed and the case was sent to a trial court.
In application no. 27496/18 the applicant complains that his de facto personal search by the NABU officials on board of a passenger airplane on 19 October 2017, without prior judicial authorisation, which was documented as an urgent search of that airplane, as well as the seizure of his laptop and mobile telephone and their subsequent examination, violated his right to respect for his private life and correspondence under Article 8 of the Convention. He also complains under Article 13 that he did not have an effective domestic remedy in respect of the above complaint. Furthermore, the applicant complains that the seizure and retention of his property was in breach of his right to the peaceful enjoyment of his possessions under Article 1 of Protocol No. 1. He additionally complains of a violation of his right to freedom of movement under Article 2 of Protocol No. 4 on account of the seizure of his passports on 19 October 2017, which prevented him from carrying out the planned trip to Germany on that date in spite of the absence of any travelling restrictions.
In application no. 30291/18 the applicant complains under Article 8 of the Convention of a violation of his right to respect for his private life (notably, as regards development of professional relations) on account of the allegedly unjustified obligation to wear an electronic tracking bracelet during the period from 14 December 2017 to 9 February 2018, as well as the retention by the authorities of his passports and other documents for travelling abroad, which was also ordered on 14 December 2017 and lasted until 5 April 2018. He also complains that there was a violation of his right to freedom of movement under Article 2 of Protocol No. 4 in respect of that last-mentioned aspect. Lastly, the applicant complains under Article 13 of the Convention that he did not have an effective domestic remedy in respect of the above complaints.
QUESTIONS TO THE PARTIES
Application no. 27496/18:Has there been a violation of Article 8 of the Convention on account of the search-and-seizure operation on 19 October 2017?The parties are invited, in particular, to comment on the following matters:
(a) Is the concept of “urgent circumstances” in Article 233 § 3 of the Code of Criminal Procedure (“the CCP”) defined in domestic law with sufficient precision to meet the foreseeability requirement?
The Government are invited to provide any police instructions, case‑law material and other domestic instruments relevant to the interpretation of the aforementioned concept.
(b) Did the applicable domestic framework contain sufficient procedural safeguards for limiting the discretion of law‑enforcement authorities in using the powers conferred on them by Article 233 § 3 of the CCP for searching the applicant’s 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) Did the authorities comply with the applicable domestic law in the present case?
(d) Was the impugned search-and-seizure operation necessary in a democratic society?
Did the applicant have at his disposal an effective remedy for his above complaint under Article 8 of the Convention, as required by Article 13 of the Convention?Was the seizure of the applicant’s belongings on 19 October 2017 and their subsequent retention lawful within the meaning of Article 1 of Protocol No. 1? If so, was it necessary in a democratic society?Did the events of 19 October 2017 give rise to a violation of the applicant’s right to liberty of movement guaranteed by Article 2 of Protocol No. 4?Application no. 30291/18:1. Has there been a violation of Article 8 of the Convention on account of the applicant’s obligation to wear an electronic tracking bracelet?
2. Has there been a violation of Article 8 of the Convention on account of the retention by the authorities of the applicant’s passports and other travel documents?
3. Was the retention by the authorities of the applicant’s travel documents in breach of his right to liberty of movement and in particular of his freedom to leave the territory of Ukraine, contrary to Article 2 of Protocol No. 4?
4. Did the applicant have at his disposal effective remedies for his above complaints under Article 8 of the Convention and Article 2 of Protocol No. 4, as required by Article 13 of the Convention?
[1] That provision empowers investigative and prosecutorial authorities to enter private property and carry out search operations without prior judicial authorisation in “urgent circumstances related to saving human lives, property or immediate apprehension of individuals suspected of having committed a criminal offence”.