(Application no. 23543/02)
2 November 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Volokhy v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mr P. Lorenzen, President,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having deliberated in private on 30 August and 9 October 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Interception of the applicants’ correspondence
“The private entrepreneur Mr V., during the period between 1 January 1994 and 1 January 1996, intentionally did not pay taxes to the State budget in the amount of UAH 12,8891, having caused damage and substantial losses to the State.
On 28 May 1996 the preventive measure – obligation not to abscond – was ordered in respect of Mr V., but, having been summoned by the investigator, Mr V. did not come to him, and his whereabouts at the present are unknown. On 4 September 1996 the preventive measure – detention – was ordered in respect of Mr V.
... Mr V. may inform his mother and brother about his whereabouts, using the postal and telegraphic correspondence.”
No time-limit for the interception had been fixed in the order.
B. Proceedings for compensation
II. RELEVANT DOMESTIC LAW
A. Constitution of Ukraine
“Everyone shall be guaranteed privacy of mail, telephone conversations, telegraph and other correspondence. Exceptions shall be established only by a court in cases envisaged by law, with the purpose of preventing crime or ascertaining the truth in the course of the investigation of a criminal case, if it is not possible to obtain information by other means.”
“Human and citizens’ rights and freedoms shall be protected by the courts.
Everyone shall be guaranteed a right to challenge in court the decisions, actions or omissions of bodies of State power, bodies of local self-government, officials and officers. ...
Everyone shall have a right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.”
“Everyone shall have a right to compensation from public or municipal bodies for losses sustained as a result of unlawful decisions, acts or omissions by public or municipal bodies or civil servants in the performance of their official duties.”
“13. The existing procedure for the arrest, custody and detention of persons suspected of committing an offence, and the procedure for carrying out an examination and search of a person’s home and other property, shall be retained for five years after the entry into force of the present Constitution.”
B. Code of Criminal Procedure
The interception of correspondence and its seizure in postal and telegraphic establishments
“The interception of correspondence and its seizure in postal and telegraphic establishments shall be conducted with the approval of the prosecutor or his deputy, or upon the resolution of a court.
The investigator shall issue an order for interception and seizure of postal and telegraphic correspondence. In that order, the investigator shall propose that a postal and telegraphic establishment intercept the correspondence defined in the order and inform him about it. The examination of correspondence shall be conducted in the presence of two representatives of the post office, and minutes are drawn up to this end.
The interception of correspondence shall be cancelled by an order of the investigator, when the application of this measure is no longer required.”
(This Article was substantially re-worded in June 2001)
C. The Law of Ukraine “on Search and Seizure Activities” of 18 February 1992
Grounds for conduct of the search and seizure activities
“The grounds for conduct of the search and seizure activities are:
1) presence of sufficient information, about ...
- persons who are preparing or have committed a crime;
- persons who are hiding from the investigative bodies, court or are evading the application of criminal sanctions; ...
It is prohibited to make decisions on the conduct of search and seizure activities for other purposes than the ones established by this Article.”
The rights of the departments that conduct search and seizure activities
“Operational units when executing their tasks in connection with operational searches (...) have the following rights:
10) to survey selectively, in accordance with particular characteristics, telegraphic and postal correspondence.”
Guarantees of lawfulness during the conduct of search and seizure activities
“...During the search and seizure activities violation of rights and freedoms of individuals and legal persons shall not be allowed. Any limitation of these rights and freedoms shall be of an exceptional and temporary nature ... in the situations stipulated by the legislation of Ukraine with the aim of protecting the rights and freedoms of other persons, the safety of the society...
During the search and seizure activities, officers of the operational units shall be obliged to take into account their proportionality to the level of social danger of criminal attempts and the danger to the interests of the society and the State.
In case of violation of rights and freedoms of individuals and legal persons ...the Ministry of Internal Affairs... shall restore the violated rights and compensate for the material and moral damage which had occurred.”
D. The Law of Ukraine “on the procedure for the compensation of damage caused to the citizen by the unlawful actions of bodies of inquiry, pre-trial investigation, prosecutors and courts” of 1 December 1994
“Under the provisions of this Law a citizen is entitled to compensation for damages caused by:
...3) unlawful conduct of search and seizure activities ...
“The right to compensation for damages in the amount of and in accordance with the procedure established by this Law shall arise in cases of:
acquittal by a court;
the termination of a criminal case on grounds of the absence of proof of the commission of a crime, the absence of corpus delicti, or a lack of evidence of the accused’s participation in the commission of the crime;
the refusal to initiate criminal proceedings or the termination of criminal proceedings on the grounds stipulated in sub-paragraph 2 of paragraph 1 of this Article;
the termination of proceedings for an administrative offence.”
“In the cases referred to in Article 1 of this Law the applicant shall be compensated for...
5) moral damage.”
“...Compensation for moral damage shall be given in cases in which unlawful actions of bodies of inquiry, pre-trial investigation, prosecutors and courts caused moral losses to a citizen, led to disruption of his usual life relations and required additional efforts for organisation of his or her life.
The moral damage shall be considered suffering caused to a citizen due to physical or psychological influence which led to deterioration or deprivation of possibilities to follow his or her usual habits and wishes, deterioration of relations with people around, other negative impacts of moral nature.”
“1. Everyone has the right to respect for ... 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.”
“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.”
A. The Government’s preliminary objection
B. Compatibility ratione temporis
C. Observance of six-month rule
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
A. Whether there has been an interference
B. Whether the interference was justified
“The Court would reiterate its opinion that the phrase ‘in accordance with the law’ does not merely refer back to domestic law but also relates to the quality of the ‘law’, requiring it to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention ... The phrase thus implies – and this follows from the object and purpose of Article 8 – that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by paragraph 1 ... Especially where a power of the executive is exercised in secret, the risks of arbitrariness are evident ...
... Since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, 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 the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.”
It follows that there has been a violation of Article 8 of the Convention arising from the interception of the applicants’ correspondence.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay Mrs Olga Volokh, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage;
(b) that the respondent State is to pay Mr Mykhaylo Volokh, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage;
(c) that the above amounts shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(d) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 2 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
1 Equivalent of USD 7,045.09 in 1996