FIFTH SECTION

CASE OF KUZMENKO v. UKRAINE

(Application no. 49526/07)

JUDGMENT

STRASBOURG

9 March 2017

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 Kuzmenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
	Angelika Nußberger, President,
	Ganna Yudkivska,
	André Potocki,
	Faris Vehabović,
	Síofra O’Leary,
	Carlo Ranzoni,
	Mārtiņš Mits, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 31 January 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 49526/07) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Anatoliy Vasylyovych Kuzmenko (“the applicant”), on 1 November 2007.
2.  The applicant was represented by Mr D.Y. Piddubko, a lawyer practising in Chernigiv. The Ukrainian Government (“the Government”) were represented, most recently, by their Agent, Mr I. Lishchyna.
3.  The applicant alleged, in particular, that he had had no access to a court in order to ventilate his complaint concerning an unlawful search of his flat.
4.  On 23 October 2013 the application was communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1974 and lives in Chernigiv.
6.  On 25 January 2007 the Desnyanskiy District Court in Chernigiv (“the District Court”) issued a warrant to search the applicant’s flat for a mobile telephone, which had been reported stolen. The relevant part of the ruling read:
“Acting investigator has applied to the court with a request to authorize search of the dwelling of [the applicant] ... with a view to locating a mobile telephone “Nokia‑7270” stolen from private entrepreneur [K.] ... [theft] having taken place on 2 December 2006 at night.
During the hearing, the acting investigator and the prosecutor have supported their request ...
Having heard the acting investigator [and] the opinion of the prosecutor, and having examined the material of the criminal case, the court concludes that ... [it] has been provided with sufficient data indicating a possibility that the Nokia 7270 mobile telephone may be at the [applicant’s] place of residence.”
7.  On 30 January 2007 the police searched the applicant’s flat in his presence and seized three mobile telephones, which, according to the applicant, belonged to him and his family members. As appears from a poorly legible copy of the list of the seized items prepared by the police, two of these telephones were apparently of Samsung and one – of Nokia make. According to the applicant, on an unspecified date the seized telephones were returned, and neither he nor any of his family members were ever indicted or involved in any other way in the criminal proceedings giving rise to the search warrant.
8.  On 3 March 2007 the applicant lodged an administrative complaint with the District Court, alleging that his home had been searched arbitrarily and seeking moral damages for breaching inviolability of his home.
9.  On 5 March 2007 the District Court refused to examine the above complaint, citing a lack of jurisdiction. It noted that all complaints regarding the unlawfulness of procedural actions by law-enforcement authorities taken in connection with a criminal investigation had to be lodged within the framework of relevant criminal proceedings based on Articles 234 and 236 of the Code of Criminal Procedure of Ukraine (“the CCP”), then in force.
10.  The applicant appealed against that decision. He alleged that there was no meaningful opportunity for him to obtain redress on the basis of the CCP provisions, since a criminal court could only examine complaints concerning the actions of investigation authorities in the context of its examination of a criminal case. In the applicant’s situation, such a remedy would not be effective, since he had no procedural status in the criminal proceedings at issue, and had never been informed of the progress of those proceedings. Moreover, it was not certain whether or when the case would reach trial stage. However, as the applicant considered himself to have been a victim of an arbitrary search, regardless of the outcome of the relevant criminal investigation, he also considered that he had standing to bring an administrative complaint under Articles 2 and 4 of the Code of Administrative Justice of Ukraine (“the CAJ”).
11.  On 15 May 2007 the Kyiv Administrative Court of Appeal rejected the appeal by the applicant, having essentially endorsed the findings of the first-instance court.
12.  The applicant appealed in cassation. He reiterated the arguments raised in his ordinary appeal and additionally submitted that his claim against the police for non-pecuniary damages could not be examined and resolved within the framework of criminal proceedings against a third party.
13.  On 13 May 2009 the Higher Administrative Court of Ukraine rejected the applicant’s cassation appeal.
Article II.	II.  RELEVANT DOMESTIC LAW
Section 2.01	A.  Constitution of Ukraine
14.  The relevant provisions of the Constitution of Ukraine read:
Article 30
“Everyone shall be guaranteed the inviolability of his or her dwelling.
Any entry into, examination of or search of the dwelling or other possession of a person shall not be permitted other than in accordance with a reasoned court decision.
In urgent cases connected to the saving of human life and the preservation of property, or the direct pursuit of criminal suspects, the law may provide for a different procedure for entering into, examining or searching the dwelling or other possession of a person.”
Article 55
“Human and citizens’ rights and freedoms are protected by the courts.
Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of bodies of State power, bodies of local self-government, officials and officers. ...
Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.”
Section 2.02	B.  1960 Code of Criminal Procedure of Ukraine (“the CCP”) (repealed with the effect from 19 November 2012)
15.  The relevant provisions of the CCP, as formulated at the material time, read:
Article 110. Appeals against acts and decisions of bodies of inquiry
“...Acts and decisions of bodies of inquiry may be appealed against to a court.
Complaints concerning the acts and decisions of bodies of inquiry shall be examined by a first-instance court in the course of a preliminary hearing in the case, or during its examination on the merits, unless otherwise provided for by this Code.”
Article 177. Grounds for a search operation
“A search shall be carried out if there are sufficient grounds to believe that the means of committing an offence ... and other items and documents important to the case are kept on certain premises. ...
A search of a person’s home and other possessions may be conducted only on the basis of a reasoned court decision, except for in urgent cases ... A court decision authorising a search is not open to appeal.”
Article 234. Complaints in respect of the acts of an investigating officer
“... Complaints in respect of the acts of an investigating officer may be lodged with a court.
Complaints in respect of the actions of an investigating officer shall be considered by a first-instance court in the course of a preliminary hearing in the case, or in the course of its consideration on the merits, unless otherwise provided for by this Code ...”
Article 236. Complaints in respect of a prosecutor’s actions
“... A complaint regarding a prosecutor’s actions may be lodged with a court.
Complaints regarding a prosecutor’s actions shall be considered by a first-instance court in the course of the preliminary consideration of the case, or in the course of its consideration on the merits, unless otherwise provided for by this Code.”
Section 2.03	C.  2005 Code of Administrative Justice of Ukraine (“the CAJ”)
16.  The relevant provisions of the Code of Administrative Justice read:
Article 2.  Role of the administrative justice system
“1. The role of the administrative justice system shall be the protection of the rights, freedoms and interests of individuals, and the rights and interests of legal entities, in the field of public-law relations from violations by public authorities ...
2. Any decisions, acts or omissions to act on the part of public authorities may be appealed against before the administrative courts, except in cases where the Constitution and laws of Ukraine set out a different procedure of judicial appeal against such decisions, acts or omissions to act ...”
Article 4.  Adjudication of administrative cases
“...
2.  Jurisdiction of the administrative courts shall cover all disputes in the public-law sphere, except disputes where the law establishes a different procedure for judicial resolution.”
Article 17. Jurisdiction of administrative courts in deciding administrative cases
“1. The jurisdiction of the administrative courts shall cover legal relationships arising in the course of the exercise of public administrative powers by ... public authorities ...
...
3.  Jurisdiction of an administrative court shall not cover legal relationships in the public-law sphere:
...
2).  that fall to be determined according to criminal procedure; ...”
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
17.  The applicant complained that he had had no access to a court for the purposes of determining his claim concerning the purported unlawfulness of a search of his flat. He referred to Article 6 § 1 of the Convention, the relevant part of which reads:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
Section 3.01	A.  Admissibility
18.  The Government alleged that this complaint was manifestly ill‑founded. In particular, proceedings concerning unlawful searches had to be brought under the procedure set out in Article 234 and other relevant provisions of the CCP. The applicant’s appeal to administrative courts had been a priori ineffective, and the competent domestic courts had advised him accordingly without delay. Not having attempted to lodge his complaint under the special procedure established by the CCP, the applicant could not allege that it was ineffective, or that he had had no opportunity to ventilate his complaint before the domestic courts.
19.  The applicant disagreed. He reiterated the arguments raised in his appeals before the domestic courts in the administrative proceedings. In particular, he argued that a criminal court could only examine his complaint if and when the respective criminal case reached trial stage, and even assuming that the court ruled that the search had been unlawful, nothing in the domestic law suggested that the procedure entitled him to claim any financial or other compensation. Moreover, it was highly improbable that his complaint would be accepted for examination, as procedurally he had no standing in the criminal proceedings at issue.
20.  The Court notes firstly that the civil nature of the right which the applicant was trying to assert in the domestic proceedings, and, accordingly, the applicability of Article 6 § 1 under its civil limb to the present complaint, is not in dispute between the parties. Regard being had to its case-law on the matter, the Court finds that Article 6 § 1 is applicable (see Veeber v. Estonia (no. 1), no. 37571/97, § 69, 7 November 2002; Shapovalov v. Ukraine, no. 45835/05, §§ 42-45, 31 July 2012; and Ravon and Others v. France, no. 18497/03, § 24, 21 February 2008).
21.  The Court next observes that the Government allege, in substance, that the applicant has not used a proper avenue of redress and has therefore not exhausted an available domestic remedy for determination of his civil claim. It considers that this allegation is closely linked to the merits of the complaint at issue. The Court therefore decides to join it to the merits.
22.  It further finds that the present complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention and not inadmissible on any other grounds. It must therefore be declared admissible.
Section 3.02	B.  Merits
23.  The applicant alleged that, by virtue of the refusal of the domestic courts to examine his complaint lodged under Articles 2 and 4 of the CAJ, he had been arbitrarily denied his right to a court to determine the merits of his complaint concerning the alleged unlawfulness of the search of his flat.
24.  The Government disagreed.
25.  The Court reiterates that the right of access to a court – that is, the right to institute proceedings before the courts in civil matters – constitutes an element which is inherent in the right set out in Article 6 § 1 of the Convention (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18, and, as a recent authority, Baka v. Hungary [GC], no. 20261/12, § 120, 23 June 2016). However, the right of access to a court is not absolute and may be subject to limitations that do not restrict or reduce the access left to an individual in such a way or to such an extent that the very essence of the right is impaired (see Markovic and Others v. Italy [GC], no. 1398/03, § 99, ECHR 2006‑XIV, and Stanev v. Bulgaria [GC], no. 36760/06, § 230, ECHR 2012).
26.  Insofar as the applicant in the present case complains that the domestic courts incorrectly interpreted the domestic law in denying him an opportunity to have his complaint considered under Articles 2 and 4 of the CAJ, it is not for the Court to substitute its own view for that of the domestic courts. It is primarily for the national courts to resolve problems of interpretation of domestic legislation. The Court’s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see, among other authorities, Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999‑I).
27.  As follows from the aforementioned decisions of the domestic courts in the applicant’s case (see paragraphs 9, 11 and 13 above) and the Government’s observations, the applicant’s claims raised under Articles 2 and 4 of the CAJ were not accepted for examination on the ground that there existed a different domestic procedure for the determination of these claims: namely, the procedure provided for by Article 234 and other accompanying provisions of the CCP. The applicant never resorted to this procedure, alleging that it was not such as to meet the Article 6 requirements.
28.  It therefore falls on the Court to examine this procedure with a view to determining whether it could indeed provide the applicant with access to a court for the purposes of Article 6 of the Convention.
29.  The Court notes that it has already examined the impugned CCP procedure in various other contexts, and has found that it could not qualify as accessible and such as to lead to determination of the applicants’ complaints raised under Articles 6 and 8 of the Convention and Article 1 of Protocol No. 1.
30.  In particular, in the case of Merit v. Ukraine, the Court found that recourse to the aforementioned CCP procedure did not qualify as effective remedy within the meaning of Article 13 of the Convention in relation to the applicant’s complaint under Article 6 of the Convention concerning the length of the criminal proceedings in his case (see, for example, Merit v. Ukraine, no. 66561/01, §§ 65-66, 30 March 2004). In the case of Kotiy v. Ukraine, the Court has found that the procedure at issue did not enable the applicant to ventilate in a timely fashion his complaint under Article 8 of the Convention concerning lawfulness and proportionality of the seizure of his passport and his placement under an undertaking not to abscond (see Kotiy v. Ukraine, no. 28718/09, § 69, 5 March 2015). In the case of Zosymov v. Ukraine, the Court has recently found that the procedure at issue did not constitute an effective remedy within the meaning of Article 13 of the Convention with respect to the applicant’s complaints under Article 8 of the Convention and Article 1 of Protocol No. 1 about allegedly unlawful search and seizure of the applicant’s property (see Zosymov v. Ukraine, no. 4322/06, §§ 94-96, 12 July 2016. In all the above cases, the Court based its findings on the arguments, similar to those put forward by the applicant in the present case (see paragraph 19 above). More specifically, it has found that the procedure at issue did not afford the applicants a possibility to obtain direct and expeditious determination of their claims.
31.  The Court finds that these considerations are pertinent in the present case in context of the applicant’s complaint under Article 6 § 1 about lack of access to a court. The Government have not presented any evidence that the applicant, who was not a party to the criminal case within the framework of which the search of his flat had been conducted, was eligible to institute court proceedings under Article 234 of the CCP or that his complaint lodged in accordance with this procedure could be examined by a court expeditiously, irrespective of when and whether the investigative authority identifies the perpetrator and commits him or her for trial. It has likewise not been shown that the criminal court would have had appropriate competence to redress the applicant’s complaint, including, if necessary, by awarding damages or applying another appropriate civil remedy.
32.  The Court therefore finds that the applicant was not bound to exhaust the remedy provided for by Article 234 of the CCP before lodging the present complaint and dismisses the Government’s objection to this effect (see paragraph 18 above).
33.  Regard being had to the fact that the domestic courts refused to examine the applicant’s complaint lodged under Articles 2 and 4 of the CAJ, referring him to a procedure which was neither accessible nor capable of leading to the direct and expeditious determination of the applicant’s civil claim, the Court considers that the applicant was denied the very essence of the right of access to a court.
34.  Accordingly, there has been a violation of Article 6 § 1 of the Convention.
Article IV.	II.  ALLEGED VIOLATION OF ARTICLE 8 AND OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION
35.  Relying on Articles 8 and 13 of the Convention, the applicant also complained that the search of his flat had been arbitrary and that he had no effective remedies in respect of the above complaint.
36.  The Government did not provide any details concerning the criminal proceedings within the framework of which the disputed search had been ordered having informed the Court that the relevant file had no longer been available.
37.  Having regard to the particular circumstances of the case and the submissions of the parties, the Court considers that the main legal question in the present application concerned the impossibility for the applicant to obtain judicial review of the substance of his complaint raised under Article 8. Having examined this question under Article 6 § 1 of the Convention, the Court considers that there is no need to give a separate ruling in respect of this part of the application (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, with further references).
Article V.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
38.  Article 41 of the Convention provides:
“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.”
Section 5.01	A.  Damage
39.  The applicant claimed 35,000 Ukrainian hryvnias (UAH) in respect of non-pecuniary damage.
40.  The Government alleged that this claim was exorbitant and unsubstantiated.
41.  The Court considers that the applicant must have suffered anguish and distress on account of the facts giving rise to the finding of a violation of Article 6 of the Convention in the present case. Ruling on an equitable basis, the Court awards him 1,500 euros (EUR) in respect of non-pecuniary damage.
Section 5.02	B.  Costs and expenses
42.  The applicant did not lodge any complaint under this head. Accordingly, the Court finds there is no call to give an award.
Section 5.03	C.  Default interest
43.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1.  Decides, unanimously, to join to the merits of the complaint raised under Article 6 § 1 of the Convention the Government’s objection concerning non-exhaustion of domestic remedies and rejects it;

2.  Declares, unanimously, the complaint raised under Article 6 § 1 of the Convention admissible;

3.  Holds, unanimously, that there has been a violation of Article 6 § 1 of the Convention;

4.  Holds, by five votes to two, that it is not necessary to examine the admissibility and merits of the complaints under Article 8 both taken alone and in conjunction with Article 13 of the Convention;

5.  Holds, unanimously,
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6.  Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 9 March 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Milan Blaško	Angelika Nußberger
	Deputy Registrar	President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Nußberger and Ranzoni is annexed to this judgment.
A.N.
M.B.

JOINT DISSENTING OPINION OF JUDGES
NUSSBERGER AND RANZONI
We have voted with the majority in favour of finding a violation of Article 6 § 1 of the Convention. Our disagreement relates to the finding “that it is not necessary to examine the admissibility and merits of the complaints under Article 8 both taken alone and in conjunction with Article 13 of the Convention” (point 4 of the operative provisions). We are of the opinion that the application should have been analysed separately under Article 8.
The majority state in paragraph 37 of the judgment “that the main legal question in the present application concerned the impossibility for the applicant to obtain judicial review of the substance of his complaint raised under Article 8”. However, we would point to the difference in the nature of the interests protected by Article 6, namely procedural safeguards, and by Article 8, namely ensuring proper respect for, inter alia, private life and protecting the individual against arbitrary interference by the public authorities. With regard to the particular circumstances of the case, we consider that the complaint under Article 8 goes beyond the fair-trial aspect of Article 6.
The searching of residential premises entailing, as here, the seizure of electronic equipment constitutes interference with the “private life” and “home” of those concerned. The Court has consistently held that the Contracting States may consider it necessary to resort to such measures in order to obtain physical evidence of certain offences. However, it will assess whether the reasons put forward to justify such measures were relevant and sufficient, and, in particular, whether the proportionality principle has been adhered to. The Court must ensure that the relevant legislation and practice afford individuals adequate and effective safeguards against abuse (see K.S. and M.S. v. Germany, no. 33696/11, § 44, 6 October 2016, with further references). The fact that a search is based on a warrant issued by a judge does not necessarily amount to a sufficient safeguard. It also matters, inter alia, whether prior judicial scrutiny was properly carried out and whether the legal framework and the limits on the powers exercised afforded adequate protection against arbitrary interference by the authorities (see Posevini v. Bulgaria, no. 63638/14, § 70, 19 January 2017 [not yet final]; Vinci Construction and GTM Génie Civil et Services v. France, nos. 63629/10 and 60567/10, § 79, 2 April 2015; and K.S. and M.S. v. Germany, § 45, cited above).
In this respect, we first note that the search warrant (see paragraph 6 of the judgment) lacked any details concerning the criminal proceedings within the framework of which the search was ordered, and that the wording of the warrant casts doubt on whether prior judicial scrutiny was properly carried out. The absence of such scrutiny may be counterbalanced by the possibility of an ex post factum judicial review of the search and seizure (see Heino v. Finland, no. 56720/09, § 45, 15 February 2011, with further references). However, in the present case the Government have not shown that such an effective remedy was available (see paragraph 31 of the judgment).
Furthermore, the police, when conducting the house search, clearly overstepped the limits of the warrant in so far as they seized three mobile phones (two Samsungs and one Nokia), whereas the search warrant referred only to one specific “Nokia 7270 mobile telephone” (see paragraphs 6 and 7 of the judgment). This abuse of power occurred without the legal framework and practice affording the applicant any adequate and effective safeguards against such arbitrary interference with his right to respect for his private life.
The aforementioned shortcomings are not sufficiently covered by the finding of a violation of Article 6 of the Convention. Against this background, we are of the opinion that the complaint under Article 8 of the Convention should have been assessed separately and that the Court should have found a violation also in this regard.