In the case of Golovan v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
DeanSpielmann, President,
MarkVilliger,
KarelJungwiert,
Boštjan M.Zupančič,
AnnPower-Forde,
GannaYudkivska,
AngelikaNußberger, judges,
andClaudia Westerdiek, Section Registrar,
Having deliberated in private on 12 June 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
41716/06) against Ukraine lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Ukrainian nationals, Mr Igor Volodymyrovych Golovan (“the
first applicant”) and Mrs Iryna Mykolayivna Golovan (“the second applicant”),
on 25 September 2006.
The Ukrainian Government (“the Government”) were
represented by their Agent, Ms V. Lutkovska.
The applicants alleged, in particular, that the
authorities had violated their rights under Article 8 of the Convention when
carrying out a search of their premisesand seizing material covered by
lawyer-client privilege. They also complained that, contrary to Article 13 of
the Convention, there had been no effective remedies in that respect.
On 28 April 2011notice of the application wasgivento
the Government.
Written submissions were received fromthe
International Association of Lawyers (Union Internationale des Avocats), which
had been granted leave by the President to intervene as a third party (Article
36 § 2 of the Convention and Rule 44 § 3of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case
The applicants are spouses. They were born in
1968 and 1965 respectively and live in Donetsk.The first applicant is a lawyer
practising in Ukraine. He is the President of the law firm Pravis, subsequently
renamed Golovan and Partners.
The applicants are the co-owners of a flat which,
at the material time, was used by the first applicant as his office. The deedof
ownership was issued in the name of the second applicant.
In February and April 2005 the first applicant
entered into legal services agreements with a company, K. Under those agreements
K. transferred to the first applicant certain documents concerning its
commercial activity.
B. The search of the first applicant’s office and
related issues
On 4 April 2005 the investigator of the Slovyansk
Tax Office instituted criminal proceedings against the officials of company K.
for alleged tax evasion and forgery of documents.
On 19 April 2005 the investigator issued a
search warrant for K.’s documents in the office of the first applicant. The
warrant was approved by the Prosecutor of Kramatorsk.In the reasoning part of
the search warrant the investigator noted that it had been established in the
course of pre-trial investigation that a number of bookkeeping, tax accounting
and other documents had been stored at the first applicant’s law office.
The warrant authorised the search and seizure of
the following material:
“contractual documents, bookkeeping documents, primary and
summaryaccounting documents, tax accounting and other documents which concern
the relationships between [K.] and [company D.] as regards the delivery of
electricityby the latter to the former company in the period from 1 January
2001 to date; decisions and other procedural documents issued in the same
period by the commercial courts when dealing with disputes between the two
companies.”
On 5 May 2005 the investigator, the tax police
officers, and two attesting witnesses arrived at the first applicant’s office
to carry out the search. The first applicant objected to the search. He stated
that the flat was private property and, accordingly, any search of it could be
carried out only on the basis of a court decision, as required by Article 177
of the Code of Criminal Procedure. He further stated that the documents
requested by the investigator had been entrusted to him by K. in his capacity
as the company’s lawyerand, by virtue of section 10 of the Bar Act, could not
be seized without his consent.
The investigator ignored the first applicant’s
objections and commenced the search. In the course of the search a number of
K.’s documents, including some dated before 2001, were seized.
The two attesting witnesses countersigned the
search report compiled by the investigator. The witnesses were born in 1984 and
at the relevant time were studying at the DonbasMachineryBuildingAcademy.
Subsequently, in the course of “pre-investigation” enquiries, the two witnesses
confirmed that the first applicant repeatedly informed the investigator that
the searched premises were the individuals’private property.
On 6 May 2005 the seized documents were attached
to the criminal case file as material evidence.
On 2 August 2005 the decision of 4 April 2005
instituting criminal proceedings against the officials of company K. was
quashed as unfounded.
C. Requests fora criminal investigation on account of
the search of the applicants’ premises
On 6 and 11 May 2005 the applicants complained
to several prosecutors’ offices at various levels about the search of their
premises. They requested that criminal proceedings be instituted against those
who had carried out the search.
On 25 May and 8 July 2005, 23 February, 4 April
and 25 August 2006, 23 March and 15 June 2007, 28 March, 5 September and 3
October 2008, 20 April 2009, 19 March, 9 April and 9 August 2010 and 4 March
2011 the prosecutor’s offices adopted decisions refusing to open criminal
proceedings against the investigator and the police officers involved in the
search. According to those decisions there was no indication that criminal
offences under Articles 162, 364, 365, and 397 of the Criminal Code had been
committed. The latest decision specified in particular that at the time of the
search the flat had been used as business premises, while the documents had
been seized as evidence in the criminal case and therefore could not be covered
by the lawyer-client privilege.
All those decisions were quashed as unfounded,
either by the supervising prosecutor or by the court. In quashing the impugned
decisions the supervising authorities relied on the provisions of the Code of
Criminal Procedure requiring preliminary court authorisation for the search of
an individual’s premises and on those of the Bar Act safeguarding the
professional secrecy afforded to lawyers.
In particular, on 27 December 2011the Voroshylovskyy District Court of
Donetsk, quashing the prosecutor’s decision of 4 March 2011refusing to
open criminal proceedings, found that the prosecutor’s office had failed to
take into account the fact that the searched flat was owned by private
individuals and that, pursuant to domestic legislation, any search of it could
be carried out only on the basis of a court decision. Besides, the materials of
the enquiries suggested that the seized documents had been entrusted to the
first applicant in the course of his activity as a lawyer and had been covered
by lawyer-client privilege. The court therefore concluded that the search and
the seizure of documents had been carried out unlawfully. The court remitted
the case for additional “pre-investigation”enquiries, for the adoption of the
proper decision under Article 97 of the Code of Criminal Procedure.
On 23 January 2012 the Court of Appeal upheld
that decision of the first-instance court,adding that the investigative
authoritieshad not yetexaminedwhether the investigator had seized documents
which had no relevance to the criminal case against the officials ofcompany K.
II. RELEVANT DOMESTIC LAW
A. Constitution of 28 June 1996
Article 30 of the Constitution provides:
Article 30
“Everyone shall beguaranteed the inviolability of his or her
dwelling.
Anyentry into, examination of or search inthe dwelling or other
possession of a person shall not be permitted other than pursuant to a reasoned
court decision.
In urgent cases connected with the rescuing of human life and
preservation of property or with the direct pursuit of criminal suspects, the
law may provide for a different procedure for entering into, examining or
searching in the dwelling or other possession of a person.”
B. Criminal Code of 5 April 2001
Article 162 of the
Code provides:
“1. Unlawful entry into, examination of or searches
in a dwelling or other possession of a person, unlawful eviction or any other
actions violating the inviolability of a citizen’s home –
shall be punishable by a fine of fifty to one hundred times the
amount of the non-taxable minimum-levelincome or by up to two years’
correctional labour, or by a restriction of liberty for up to three years.
2. The same acts, if committed by officials... –
shall be punishable by imprisonment for two to five years.”
Article 364 of the Code, as worded at the
relevant time,provided:
“1. Abuse of power or office, namely intentional
use, for financial gain or with other personal interest or in the interest of
third persons, by an official of his/her power or office against the interest
of the service, if it has caused serious damage to State or public interests or
to lawful interests, rights and freedoms of natural or legal persons, –
shall be punishable by up to two years’ correctional labour or
by up to six months’detention or by a restriction of liberty for up to three
years, with a prohibition for up to three years on the holding of certain posts
or the performance of certain activities. ...
2. The same acts, if they have caused grave
consequences, –
shall be punishable ...
3. Acts as described in paragraphs 1 or 2 of this
Article, if committed by law-enforcement officers, –
shall be punishable by imprisonment of between five and twelve
years, with a prohibition of up to three years on holding certain posts or
performing certain activities, and with confiscation of property.”
Article 365 §1 of the Code, as worded at the
relevant time, provided:
“The exceeding of power or office, namely the intentional
commission of acts by an official which go manifestly beyond the scope of the
rights and powers vested in him or her and which cause serious damage to the
State or public interest or to the lawful interests, rights and freedoms of
natural or legal persons –
shall be punishable by up to two years’ correctional labour or
by restriction of liberty for up to five years, or by imprisonment for between
two and five years, with a prohibition for up to three years on the holding of
certain posts or the performance of certain activities.”
Article 397 of the
Code provides:
“1. Any obstruction of defence counsel or another
representative in the course of his/her lawful activities in providing legal
assistance, or a violation of the lawful guarantees of his/her activities and
professional secrecy –
shall be punishable by a fine of one hundred to two hundred
times the amount of the non-taxable minimum-level income or by up to two years’
correctional labour, or by up to six months’detention, or by a restriction of
libertyfor up to three years.
2. The same acts, if committed by officials in the
performance of their duties –
shall be punishable by a fine of three hundred to five hundred
times the amount of the non-taxable minimum-levelincome or a restriction of
liberty for up to three years with a prohibition of up to three years onthe
holding ofcertain posts or the performance of certain activities.”
C. Code of Criminal Procedure of 28 December 1960
Article 4 of the Code provides:
“The court, the prosecutor, the investigator or the body of inquiry
must, to the extent that it is within their power to do so, institute criminal
proceedings in every case where evidence of a crime has been identified, take
all necessary measures provided by law to establish whether a crime has been
committed, identify the perpetrators, and punish them.”
Under Article 28 of the Code, a person who has sustained damage as a result
of a criminal offence can lodge a civil claim against an accused at any stage
of criminal proceedings before the beginning of the consideration of the case
on the merits by a court. A civil claimant in criminal proceedings shall be
exempt from the court fee for the lodging of a civil claim.
The relevant parts of Article 97 of the Code
provide:
“A prosecutor, investigator, body of inquiry or judge is
obliged to accept applications or communications regarding crimes which have
been committed or planned, including in cases that are outside its competence.
Following an application or communication in respect of a
crime, the prosecutor, investigator, body of inquiry or judge is obliged,
within a three-day time-limit, to adopt one of the following decisions:
(1) to institute criminal proceedings;
(2) to refuse to institute criminal proceedings;
(3) to remit the application or communication for
further examination according to jurisdiction.
...
In the event that it is necessary to examine the information or
communication in respect of a crime before initiating criminal proceedings,
such an examination shall be conducted by a prosecutor, investigator or body of
inquiry, within a time-limit of ten days, by obtaining statements from
individual citizens or officials or by requesting the necessary documents. ...”
Article 114 of the Code provides that in the
course of the investigation the investigator shall make all the decisions on
his own as regards the direction of the investigation and the investigative
actions that should be taken, except incaseswhere the law requires approval by
the court or the prosecutor.
Article 127 of the Code provides, inter alia,
that in the course of the search at least two witnesses should be present. The
witnesses should be unbiased. The witnesses cannot be chosen from among the
victims, their relatives, the relatives of the suspect or the accused or
officers of the body of inquiry or investigation.
32. Article 177 of the Code
provides:
“...A search in a person’s home and other possession may be
conducted only on the basis of a reasoned court decision, except forurgent
cases. ...A court decision authorising the search is not subject to appeal. A
refusal by the court to allow a search may be appealed against by the
prosecutor within three days.
In urgent cases connected with the
rescuing of human life and preservation of property or with the direct
pursuit of criminal suspects, the search may be performed without a court
decision. The search report shall state the reasons for its performance without
a court decision. Within twenty-four hours the investigator shall refer a copy
of the search report to the prosecutor.”
Article 236-1 of the Code provides:
“Complaints against a decision of a body of inquiry, investigator, or prosecutor refusing to open criminal proceedingsshall be lodged with the district
(city) court ... by the person whose interests are affected, or by a
representative of that person, ... within seven days of receipt of the decision
or of information from the prosecutor that he refused to quash the decision.”
Article 236-2 of the Code provides:
“Complaints against a decision of a prosecutor, investigator or body of inquiry refusing to open criminal proceedings shall be examined by a single judge within ten days of the arrival of the case file at the court.
The judge shall request relevant materials on which the refusal
to initiate criminal proceedings was based, examinethem and inform the prosecutor
and the complainant of the date on which it will be examined. If necessary a
judge shall hear explanations from the person who lodged the complaint.
Averbatimrecordofthe hearing shall be drawn up.
... a judge shall takeone of the following decisions:
1) to quash the decision refusing to open criminal proceedings and return the case file materials for additional
[“pre-investigation”] enquiries;
2) to reject the complaint.
A judge’s decision in this regard may be appealed against before the court of appeal within seven days of its adoption, by a prosecutor or a
complainant. ...”
D. The Bar Act of 19 December 1992
Section 10 of the Act provides that documents
relating to a lawyer’s professional activity may not be examined, divulged or
seized without the lawyer’s consent.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES8 AND 13 OF THE
CONVENTION
The applicants complained that the search of
their premises and seizure of documents performed by the authorities on 5 May
2005 was incompatible with the principles of Article 8 of the Convention. They
further complained under Article 13 of the Convention that there had been no
proper consideration of their claims on that account by the domestic
authorities.
Articles 8 and 13 of the Convention provide as
follows:
Article 8 (right to respect for private and family life)
“1. Everyone has the right to respect for his
private and family life, his home and 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.”
Article 13 (right to an effective remedy)
“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. Admissibility
1. The parties’ submissions
In their written observations of 14 October
2011, the Government maintained that the applicants had failed to comply with
the rule of exhaustion of domestic remedies since they had not challenged the
prosecutor’s decision of 4 March 2011 refusing to institute criminal
proceedings against the investigator and tax police officers who had carried
out the search. They specified that under the domestic law the applicants could
challenge the prosecutor’s decisions refusing to open an investigation either
before the higher prosecutor or before a court.
The Government further disputed the second
applicant’s victim status under Article 8 of the Convention claiming that,
while the second applicant was the owner of the flat in which the search was
performed, it was exclusively the first applicant who used the flat for his
professional purposes. There were no personal belongings or any items relating
to the business activities of the second applicant which could suggest that her
private life was somehow connected with the flat. The Government lastly
submitted that in the absence of any arguable complaint under Article 8 of the
Convention no issue could arise under Article 13 of the Convention in respect
of the second applicant.
The applicants contested the Government’s
submissions. In respect of the non-exhaustion plea, they claimed that there had
been no effective remedies against the prosecutor’s decision refusing to open
the investigation. They noted that fourteen decisions had previously been
quashed by the supervising authorities but thisdid not prevent the prosecutor’s
office from adopting a new similar decision in disregard of the court’s
instructions. They assumed therefore that the case would never end with a final
decision for the purposes of the rule of exhaustion of domestic remedies.
Subsequently, the applicantssubmitted the copies of court decisions of 27December
2011 and 23 January 2012 according to which the prosecutor’s decision
referred to by the Government had been quashed as unfounded and the case
remitted againfor further “pre-investigation”enquiries.
Theapplicants further insisted that the second
applicant could claim to be a victim under the Convention and that her part of
the application was admissible.
2. The Court’s assessment
As to the Government’s objection based on the
rule of exhaustion of domestic remedies, the Court considers that, in as much
as this objection concerns the first applicant, it should be examined jointly
with the merits of his complaints. In as much as this objection concerns the
second applicant, the Court does not find it necessary to deal with it since
her complaints under Articles 8 and 13 of the Convention are in any event
inadmissible for the following reasons.
The second applicant’s complaint under
Article 8 of the Convention was essentially based on the fact that she
possessed adeed of ownership in respect of the flat in which the search was
performed. However, it is common ground that the flat was used exclusively by
the first applicant for the purposes of his professional activity. There is no
reason to characterise the flat as the “home” of the second applicant within
the meaning of Article 8 of the Convention. Equally, there is no
indication that the second applicant’s private life had any tangibleties with
that flat. Accordingly, the Court considers that the second applicant failed to
show that there had been an interference with her rights under Article 8 of the
Convention. Her complaint under that Convention provision should therefore be
rejected as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the
Convention.
Having declared the second applicant’s complaint
under Article 8 of the Convention inadmissible, the Court concludes that this
applicant has no arguable claim for the purposes of Article 13 of the
Convention (seeRodić and Others v.Bosnia and Herzegovina, no. 22893/05, § 82, 27 May 2008). It follows that the second
applicant’s complaint under Article 13 of the Convention must be rejected as being
incompatible ratione materiae with the provisions of the Convention,
pursuant to Article 35 §§ 3 (a) and 4.
The Court further notes that the complaints of
the first applicant under Articles 8 and 13 of the Convention are not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It also notes that they are not inadmissible on any other grounds. They
must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The first applicant
The first applicantcontended that his rights
under Articles 8 and 13 of the Convention had been violated. The search had
been unlawful as it breached the requirement of preliminary judicial
authorisation laid down in Article 177 of the Code of Criminal Procedure; the
investigator and the tax police officers had disregarded his right to
professional secrecyas protected by the Bar Act; moreover, they had seized
documents which were not covered by the search warrant. As to the attesting
witnesses, they could not be considered as an appropriate safeguard capable of
effectively preventing any possible violations. Nevertheless, the invited
witnesses subsequently confirmed that the first applicant repeatedly warned the
investigator about the peculiarities of the legal status of the premises.
The first applicant further claimed that the
State had failed in its obligation to carry out an effective investigation in
respect of the matter. Moreover, given that the facts of the case gave rise to
the criminal prosecution of the officials concerned, the only appropriate way
to raise the matter at domestic level was as provided for in the Code of
Criminal Procedure. There had been no other appropriate procedures that he
could effectively pursue.
(b) The Government
The Government submitted that under Article 114
of the Code of Criminal Procedure the investigator was empowered to make his
own decisions on investigative actions. The decision to conduct a search in the
office of the first applicant had beencompliant with Article 177 of the Code as
there had been grounds to believe that evidence could be found there.
They further stated that domestic law offered
sufficient guarantees against any abuses on the part of the law-enforcement
officers in the course of the search of the premises. In particular, the search
had to be observed by two independent attesting witnesses who were entitled to
observe the search and make written comments if necessary. Any further
requirementsconnected with the independent observance of the search would
impose an excessive burden on the State.
(c) The third party
The third party, the International Association
of Lawyers, provided an overview of the Court’s principles on the matter of
searches in lawyers’ offices and expressed their opinion that those principles
had not been complied with in the present case. The third party submitted that
the search and seizure carried out in the office of the first applicant
amounted to an interference with his rights under Article 8 of the Convention.
Theinterference was not “in accordance with the law” since it contradicted the
existing provisions of domestic legislation, which moreover did not comply with
the “quality of law”requirements for the purposes of the Convention. Lastly,
the circumstances of the case did not suggest that the interference was
“necessary in a democratic society”.
2. The Court’s assessment
(a) Article 8 of the Convention
(i) Existence of interference
The search of a lawyer’s office may prompt the
Court to consider the matter from the standpoint of interference with “private
life”, “home” and “correspondence” (see Niemietz v. Germany, 16 December
1992, §§ 29-33, Series A no. 251‑B; Sallinen and Others v. Finland, no. 50882/99, §§ 70‑72, 27 September 2005; and Wieser and Bicos
Beteiligungen GmbH v. Austria, no. 74336/01, §§ 43-45, ECHR 2007‑IV).
In the present case the law-enforcement officers
entered the first applicant’slaw office, carried out a search there and seized
a number of contractual, financial and fiscal documents which had been
entrusted to the first applicant by his client.
The measures complained of interfered with the
first applicant’s professional life: they had repercussions for his reputation
as a lawyer and must have affected the wide range of personal connections that
he had developed through his professional activity.Accordingly, the measures
had a serious impact on the first applicant’s private life in the meaning of
the Convention (see Özpınar v. Turkey, no. 20999/04, §§ 45 and 46, 19 October 2010, with
further references). Besides that, the impugned measures occured in the first
applicant’s officewhich was covered by the concept of “home” (see, for example,
Heino v. Finland, no. 56720/09, § 33, 15 February 2011).
The Court therefore finds that these actions by
the State authorities interfered with the first applicant’s right to respect
for his “private life” and “home” in the meaning of Article 8 of the
Convention.
(ii) Justification for the interference
The Court next has toexamine whether the
interference satisfied the conditions of paragraph 2 of Article 8.
The expression “in accordance with the law”
requires, firstly, that the impugned measure should have some basis in domestic
law; secondly, it refers to the quality of the law in question, requiring that
it should be accessible to the person concerned, who must moreover be able to
foresee its consequences for him, and compatible with the rule of law (see,
among other authorities, Kopp v. Switzerland, 25 March 1998, §55, Reports
of Judgments and Decisions 1998‑II).
The phrase thus implies, inter alia, that
domestic law must be sufficiently foreseeable in its terms to give individuals
an adequate indication as to the circumstances in which and the conditions on
which the authorities are entitled to resort to measures affecting their rights
under the Convention (see C.G. and Others v. Bulgaria, no. 1365/07, §39,
24 April 2008).The law must moreover afford a degree of legal protection
against arbitrary interference by the authorities. The
existence of specific procedural safeguards is material in this context. What
is required by way of safeguard will depend, to some extent at least, on the
nature and extent of the interference in question (see P.G. and J.H. v. the
United Kingdom, no. 44787/98, § 46, ECHR 2001‑IX).
Turning to the present case, the first question
is whether the interference in question had some basis in domestic law. In this
regard the Courtnotes that according to Article 30 of the Constitution and
Article 177 of the Code of Criminal Procedure the search in a dwelling or other
possession of a person should be conducted with the preliminary authorisation
of a court, except for urgent cases connected with the
rescuing of human life and preservation of property or with the direct
pursuit of criminal suspects.
The Court finds no indication as to why these
domestic law requirements should not have been applied in the first applicant’s
case. In particular, the authorities did not claim that there had been an
urgent case within the meaning of Article 30 of the Constitution or Article 177
of the Code of Criminal Procedure. Neither did they refer to any other
plausible reason to justify the deviation from those requirements of domestic
law. Meanwhile, the domestic courts, relying, inter alia, on the above
provisions of domestic law, found that the search had not been lawful.
As regards the
compliance with the Bar Act, section 10 declares a general prohibition on
examining, divulging and seizing documents entrusted to alawyer or related to
his professional activity without his consent. It remains unclear however, how
this provision corresponds with the lawful activities of other actors of social
life. In particular, neither this section nor any other provisions of domestic
law specifically deal with the legitimate exceptions authorising interference
with the professional secrecy of a lawyerby investigative bodies. Indeed, the
Convention does not prohibit the imposition of certain obligations on lawyers
which may affect their relationships with their clients (seeAndré and Other
v. France, no. 18603/03, § 42, 24 July 2008; Jacquier v. France (dec.), no. 45827/07, 1 September 2009; andXavier
Da Silveira v. France, no. 43757/05, §37,
21 January 2010). Accordingly, the absolute statutory ban, aimed at
protecting the inviolability of the legal profession, could not be
consistentlyapplied without the introduction of further binding rules governing
justified interference with privileged material. The current status of the
domestic law thus afforded the authoritiesfull discretion in determining how
section 10 of the Bar Act should be corresponded with the Code of Criminal
Procedure and other legislative provisions in each particular case. In these
circumstances the Court considers that the applicable domestic law did not meet
the standard of foreseeability enshrined in the Convention (see Narinen
v. Finland, no. 45027/98, §§ 35 and 36, 1June 2004).
The standard of foreseeability was further
undermined by the insufficient guarantees in domestic law that search warrants
should be based on a reasonable suspicion and be drafted with sufficient
precision and details. The compatibility of a search warrant with these
requirements has always been a matter of concern for the Court (see, among many
other authorities, Niemietz, cited above, § 37; Van Rossem v. Belgium,
no. 41872/98, § 45, 9 December 2004; Smirnov v. Russia, no. 71362/01, § 47, 7 June 2007; Iliya Stefanov v. Bulgaria, no. 65755/01,
§§ 40 and 41, 22 May 2008; andMancevschi v. Moldova, no. 33066/04, §§ 47
and 48, 7 October 2008). As a result, the search warrant in the present
case did not specify and substantiate the reasons which led the investigator to
the conclusion that that the evidence could be found in the first applicant’s
office.
Next, the Court reiterates that the persecution
of members of the legal profession strike at the very heart of the Convention
system(see Elci and Others v. Turkey, nos. 23145/93 and
25091/94, § 669, 13 November 2003). An encroachment on professional secrecy may
have repercussions for the proper administration of justice and hence for the
rights guaranteed by Article 6 of the Convention (Niemietz, cited above,
§ 37). Therefore the searching of lawyers’ premises should be subject to particularlystrict
scrutiny. Appropriate safeguards, such as the presence and effective
participation of an independent observer, must always be made available in the
course of the search of a lawyer’s office to ensure that material subject to
legal professional privilege is not removed (see André and Other, cited
above, §§ 43 and 44, 24 July 2008, and Aleksanyan v. Russia, no. 46468/06, § 214, 22 December 2008).
The Court has
held that such an observer should have requisite legal qualification in order
to effectively participate in the procedure (see, for example, Iliya
Stefanov v. Bulgaria, cited above, § 43, and Kolesnichenko v. Russia,
no. 19856/04, § 34, 9 April 2009).
Moreover, he should be also bound by the lawyer-client privilege to guarantee
the protection of the privileged material and the rights of the third persons.
Lastly, the observer should be vested with requisite powers to be able to
prevent, in the course of the sifting procedure, any possible interference with
the lawyer’s professional secrecy (see, for example, Wieser and Bicos
Beteiligungen GmbH, cited above, § 62).
In the Court’s opinionthe domestic law does not
provide appropriate safeguards for the supervision of the search by an independent
observer capable of preventing arbitrary interference with the work of a lawyer.Neither
the Code of Criminal Procedure (see Article 127), nor the Bar Act contain any
qualifications (education, experience, place of employment, etc.) for the attesting
witnesses observing the search in a lawyer’s office. Nor dosuch observers have
any appropriate means ofpreventing arbitrariness in the course of the search.
Given such a legislative background, it is not surprising that in the present
case the attesting witnesses, invited by the police, turned out to be two young
students of a machine building academy without any relevant experience or legal
qualification allowing them to play a role of meaningful guarantor against
arbitrary interference with the materialcovered by lawyer-client privilege.
They could not even establish that the authorities seized in fact the documents
which had not been covered by the chronological limits fixed in the search warrant
(see paragraphs 11 and 13 above).
In view of the above, the Court concludes that
the interference in question was not “in accordance with the law”: the impugned
measures contravened the provisions of domestic legislation; moreover, the
applicable domestic law was not sufficiently foreseeable and did not provide an
appropriate degree of protection against arbitrariness. For these reasons there
has been a violation of Article 8 of the Convention.
In the light of this conclusion the Court does
not consider it necessary to examine whether the other conditions of paragraph
2 of Article 8 were complied with.
(b) Article 13 of the Convention
Article 13 requires an effective remedy in
domestic law in respect of grievances which can be regarded as “arguable” in
terms of the Convention (see, for example,Keegan v. the United Kingdom, no. 28867/03, § 40, ECHR 2006‑X).
In the light of the finding of a violation of
Article 8 above, the Court considers that the first applicant’s complaint was
arguable.It must accordingly be determined whether the Ukrainian legal system
afforded him an “effective” remedy, allowing the competent national authority
both to deal with the complaint and to grant appropriate relief (see, for
example,Camenzind v. Switzerland, 16 December 1997, § 53, Reports 1997‑VIII).
The Court found a violation of Article 13 of the
Convention in the case of Vladimir Polishchuk and
Svetlana Polishchuk v. Ukraine
(no. 12451/04, §§ 54 and 55, 30 September 2010) in which a civil claim on
account of an unlawful search had not been considered by the domestic courts
mainly for the reason that the claimant had not been directly involved in the
relevant criminal proceedings.
In the present case
also, the first applicantwas not a party to the relevant criminal proceedings.
The Government did not submit any examples of domestic judicial practice which
could suggest that the first applicant had been in a position to lodge a
separate civil claim. The Court concludes therefore that a separate civil
action was not sufficiently certain in practice and, accordingly, cannot be
regarded as an effective remedy.
The Court further
notes that the Government did not point to any other avenue which the
first applicant could have used at the domestic level to raise the issues of
the unlawful search and seizure and obtain appropriate redress.
As regards the first applicant’s attempts to
have the officers prosecuted, the Court does not consider thatin the
circumstances of the instant casethe application of criminal-law sanctions was
indispensable for the appropriate protection of the first applicant’s rights
against unlawful search and seizure (see also Peev v. Bulgaria, no. 64209/01, § 70, 26 July 2007, and Betayev and Betayeva v. Russia,
no.37315/03, § 127, 29 May 2008).
At the same timethe Court notes that the
domestic criminal law providesfor a series of corpora delictorum which
potentially cover the actions complained of by the first applicant(see
paragraphs23-26 above). Moreover, the Code of Criminal Procedure affords a
joint examination of criminal responsibility and civil liability arising from the
same culpable actions, thusfacilitating the overall procedural protection of
the rightsat stake (see paragraph 28).
Accordingly, the Court considers that, in the
absence of any other legal avenue,the first applicant’s pursuit of the matter
within the framework of the criminal procedure,with the possibility of
engagingboth the criminal responsibility and civil liability of the alleged
culprits, could bejustified. The Court must therefore examinewhether the
procedure followed by the first applicant waseffective for the purposes of
Article 13 of the Convention.
In this connection the Court notes that the
allegations of the first applicant were examined exclusively in the course of
“pre-investigation”enquiries, as provided for in Article 97 of the Code of
Criminal Procedure, ending with decisions refusing the opening of a criminal
investigation. However, the Court has held in other contexts that this
investigative procedure does not comply with the principles of an effective
remedy because the enquiring officer can take onlya limited number of
procedural steps within that procedure at a point where victims have no formal
status, thus excluding their effective participation in the procedure (see Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, §§ 310-312, 1 July 2010).
In particular, at that stage of the domestic proceedings a claimant does not
have appropriate access to the case file and that significantly undermines the
effectiveness of the procedure (see, mutatis mutandis, Oleksiy
Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, §§ 71-73, 24 June 2010).
There is no reason to depart from those findings in the present case.
The Court further notes that the supervising
authorities found the results of the enquiries unsubstantiatedon many
occasions,with the case being remitted for a new round of enquiries. It appears
that for more than seven years the authorities,who were empowered to open and
conduct a criminal investigation,did not make any genuine attempt to carry out
a thorough examination of the matter, establish the facts, establish an
appropriate legal characterisation of the case and, if necessary, bring those
responsible to account.
The numerous remittals of the case for
“pre-investigation”enquiries suggest that the review ofthe prosecutor’s
decisions refusing to open an investigation turned out to be futile. In
particular, despite repeated instructions, the prosecuting authorities were not
effectively prevented from adopting multiple similar decisions refusing to open
criminal proceedings. It is a matter of concern that the officials in chargeof
the “pre-investigation”enquiries were able to compromise the supervisory review
in such a manner. It is a matter of even greater concern that the supervising
authorities, while criticising the decisions of those officials, were prepared
to tolerate their conduct indefinitely. The Court admits that a prosecutor must
be vested with certain discretion as to whether the facts and evidence
assembled justify a decision to open and pursue criminal proceedings. However,
where the discretion is exercised arbitrarily or in bad faith, as it appears to
have been in the present case, the effectiveness of the whole procedure is set
at nought.
The Court does not therefore share the
Government’s opinion that the first applicant was required under Article 35 § 1
of the Convention to challenge the prosecutor’s decision of 4 March 2011
refusing to institute criminal proceedings. Nevertheless, it appears that the
first applicant did in fact challenge the decision referred to by the Government,
following which it was quashed and the case was remitted for another round of
“pre-investigation” enquiries. The Government’s objection as to the
non-exhaustion of domestic remedies should thus be rejected.
In the
light of the above considerations the Court finds that the domestic authorities
failed to carry out an effective investigation into the first applicant’s
allegations and negated all his expectationsof obtaining any retrospective
relief, including civil-law redress, on account of the violation claimed.
The Court thus concludes that the first
applicant did not have an effective remedy in respect of his complaint under
Article 8 of the Convention. There has therefore been a violation of Article 13
of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicants complained that the failure by
the authorities to prosecute the law-enforcement officers involved in the
search of their premises amounted to a violation of Article 7 of the
Convention.
The Court has examined those complaints and
considers that, in the light of all the material in its possession and in so
far as the matters complained of are within its competence, they do not
disclose any appearance of a violation of the rights and freedoms set out in
the Convention or its Protocols. Accordingly, the Court rejects them as
manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.”
A. Damage
The first applicant submittedthat he had
sustained serious non-pecuniary damage in respect of the violations claimed. He
further asked the Court to determine the form and amount of just satisfaction
of its own motion.
The Government maintained that the claim was
unsubstantiated.
The Court considers
that the distress and frustration caused to the first applicant cannot be
compensated for by the mere finding of a violation. Having regard to the nature
of the issues in the present case and making its assessment on an equitable
basis, the Court awards the first applicant 10,000 euros (EUR) in respect
of non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
The first applicant did not submit any claims
under this head. The Court therefore makes no award.
C. Default interest
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 UNANIMOUSLY
1. Joins to the
merits the Government’s objection as to the first applicant’s
compliance with the rule of exhaustion of domestic remedies and dismisses it
after an examination on the merits;
2. Declares the first applicant’s complaints
under Articles 8 and 13 of the Convention admissible and the remainder of the
application inadmissible;
3. Holdsthat there has been a violation of
Article 8 of the Conventionin respect of the first applicant;
4. Holds that there has been a violation of
Article 13 of the Convention in respect of the first applicant;
5. Holds
(a) that the respondent State is to pay the first applicant,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 10,000 (tenthousand
euros) plus any tax that may be chargeable, in respect of non-pecuniary damage,
to be converted into the national 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.
Done in English, and notified in writing on 5 July 2012,
pursuant to Rule 77§§2 and3 of the Rules of Court.
Claudia Westerdiek Dean
Spielmann
Registrar President
