Communicated on 21 April 2016
FIFTH SECTION
Application no. 33015/06
Vitaliy Osipovich VOSKOBOYNIKOV
against Ukraine
lodged on 1 August 2006
STATEMENT OF FACTS
The applicant, Mr Vitaliy Osipovich Voskoboynikov, is a Ukrainian national, who was born in 1940 and lives in Odessa.
A. The circumstances of the case
1. Proceedings before the Commercial Court
On 12 January 1999 the applicant, acting as the director general of company V. (hereinafter “the company”), signed an agreement on the lease of non-residential premises with company Yu.
As company Yu. had not fulfilled certain conditions stipulated in the agreement, the company, represented by the applicant, sued it before the Odessa Regional Commercial Court (Господарський суд Одеської області) on 12 July 2001.
In a judgment of 5 March 2003 the Regional Commercial Court dismissed the company’s action finding, inter alia, the agreement null and void ex tunc.
On 8 April 2003 the Odessa Commercial Court of Appeal (Одеський апеляційний господарський суд) upheld the first instance judgment.
On 26 June 2003 the Higher Commercial Court (Виший господарський суд) partly granted the applicant’s company’s appeal on points of law, quashed the decisions of the lower courts in the part relating to the nullity of the lease agreement and stopped the proceedings in this respect.
On 25 September 2003 the Supreme Court (Верховний суд) decided that the Higher Commercial Court had not violated any procedural rules.
2. Criminal proceedings against the applicant
On 3 October 2001 criminal proceedings were brought against the applicant for forgery under Article 366 § 1 of the Criminal Code.
On 8 October 2001 a senior investigator of the Odessa Prymorskyy District Prosecutor’s Office (Прокуратура Приморського району м. Одеса) issued a seizure warrant regarding a number of documents concerning the company. The seizure warrant indicated that the documents were to be seized in “join venture [V.]”, but the address of the company’s seat was not specified.
The seizure took place on 11 October 2001. According to the applicant, while the seizure warrant had been issued for the company’s premises, the seizure was performed in his flat which was temporarily used also for the work purposes as the company had been evicted from the premises in dispute before the Commercial Court (see above).
The seizure record referred to “[the seizure of different original documents located in the joint venture [‘V’.]”. The record indicated that two persons were present at the seizure, apparently the applicant’s collaborators, but did not specify the address of the company nor did it indicate whether the applicant, who received the seizure warrant only on 15 October 2001, was present.
On 22 October 2001 an expertise in graphology was ordered. As the applicant refused to produce samples of his manuscript and signature, on 7 November 2001 a judge at the Odessa Prymorskyy District Court (Приморський районний суд м. Одеса) issued a search warrant concerning the applicant’s flat. In its reasoning, the search warrant stated that the aim of the search was “to collect [the applicant’s] handwritten notes” and that:
“... the thorough expertise in graphology cannot be carried out without the mentioned examples and that for the performance of the expertise, it is necessary [to dispose of] notebooks, correspondence and other personal notes with a manuscript of [the applicant] which are located in his place of residence and work ...”
The search was carried out on the next day in the applicant’s presence. During the search, 11 documents were seized.
On 29 October 2001 the applicant filed a request to discontinue the criminal proceedings against him on the ground that the accusations brought against him had been fabricated. On 23 November 2001 he was informed that there was no violation of the provisions of the criminal procedure and that the proceedings were ongoing.
On 24 December 2001 the senior investigator issued a new seizure warrant for the premises of the company, concerning further documents involving the applicant and the company. The warrant did not indicate an address where the seizure should take place. According to the applicant, who received the seizure warrant on 9 January 2002, the seizure had been performed again in his flat on 24 December 2001.
On 20 August 2002 the criminal proceedings against the applicant were discontinued for lack of evidence of a criminal offence. The criminal investigation was subsequently re-opened but, on 16 October 2002, again discontinued.
3. Proceedings for damages
On 8 October 2002 the applicant brought an action for damages to compensate his moral damage sustained in the criminal proceedings which included the search in his flat and the seizure of his documents. He also stated that he had been excluded from his function of director general from 9 May to 1 September 2002 as a consequence of then ongoing criminal proceedings.
By a judgment of 9 December 2002 the Prymorskyy District Court dismissed the applicant’s action for damages stating, in particular, that the search and seizure had been carried out in the company’s office and not in the applicant’s flat. It appears that the court did not deal with the applicant’s argument that the home search had not been limited to collect the samples of his manuscript but that a number of documents was seized.
On 11 September 2003 the Odessa Regional Court of Appeal (Апеляційний суд Одеської області) upheld the first instance judgment finding the applicant’s appeal unsubstantiated. It noted, inter alia, that the home search of 8 November 2001 had been carried out “upon the judge’s ... order ... in the office of the joint venture ‘[V.]’ which was the flat of [the applicant]”.
On 8 October 2003 the applicant filed an appeal on points of law which was rejected by the Supreme Court on 3 February 2006. The judgment was notified to the applicant on 13 February 2006.
B. The relevant domestic law
The relevant provisions of the Code of Criminal Procedure are described in judgment of Golovan v. Ukraine (no. 41716/06, §§ 30-32, 5 July 2012).
The relevant provisions in respect of proceedings for damages are included in judgment of Volokhy v. Ukraine (no. 23543/02, § 28, 2 November 2006).
COMPLAINTS
1. Relying on Article 8 of the Convention, the applicant challenges the unlawful search and seizure of the documents in his flat. He states that the first seizure was ordered by the investigator and not by the prosecution or the court, and he was informed about it only four days later. The second seizure warrant issued on 24 December 2001 was notified to him on 9 January 2002. Moreover, during the search intended to collect samples of his manuscripts other documents were seized.
2. The applicant finally complains that he did not have any effective domestic remedy to defend his rights as provided for in Article 13 of the Convention.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant’s right to respect for his private life and home or correspondence, within the meaning of Article 8 § 1 of the Convention?
2. If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
3. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 8 of the Convention, as required by Article 13 of the Convention?
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