FIFTH SECTION

CASE OF DUBOVYCH v. UKRAINE

(Applications nos. 47821/10 and 66460/12)

JUDGMENT

STRASBOURG

22 July 2021

This judgment is final but it may be subject to editorial revision.

In the case of Dubovych v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Lətif Hüseynov, President, Lado Chanturia, Mattias Guyomar, judges, and Martina Keller, Deputy Section Registrar,

Having regard to:

the applications nos. 47821/10 and 66460/12 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, Ms Ganna Yevgenivna Dubovych (“the first applicant”) and Mr Petro Petrovych Dubovych (“the second applicant”), on 28 July 2010 and 9 October 2012 respectively;

the decision to give notice of the applications to the Ukrainian Government (“the Government”);

the parties’ observations;

Having deliberated in private on 1 July 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. The applicants alleged that their home had been unlawfully searched and complained of unavailability of effective domestic remedies for the relevant complaints. They invoked Articles 6, 8 and 13 of the Convention.

THE FACTS

2. The applicants, born in 1949 and 1944 respectively, are a married couple living together in Bilozirya.

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. On 23 July 2007 the Cherkasy District Court issued a search warrant for the applicants’ house and grounds, on the basis of a police request referring to “operative information” that the second applicant could be engaged in drug dealing and the trade of stolen goods.

5. On the same date the police searched the house and grounds and found no suspicious items.

6. On 30 July 2007 the second applicant complained to the Cherkasy Regional Police Department that his household had been searched arbitrarily and that his and his wife’s rights had been violated.

7. On 24 September 2007 the Department, having conducted an internal investigation, concluded that the documents submitted to the court in order to obtain the search warrant had been forged, and the procedural rules concerning the filing of documents in criminal cases had been grossly breached. It forwarded that conclusion to the Cherkasy district prosecutor’s office to decide whether a criminal investigation into the relevant circumstances was warranted.

8. On several occasions the prosecutor’s office refused to institute criminal proceedings, but those decisions were each quashed either by the supervising prosecutorial authorities or by the courts, making reference to various procedural flaws, and the case was remitted for further investigation. Eventually, on 21 February 2011, the prosecutor’s office again took a decision not to institute criminal proceedings, referring to the death of officer K., who was the officer suspected of having falsified the material which had served as the basis for obtaining the search warrant.

10. On 19 August 2010 the Sosnivskyy District Court in Cherkasy allowed her claim in part and awarded her 1,500 Ukrainian hryvnias (UAH) in respect of non ‑ pecuniary damage, in relation to her claim against the State Treasury.

11. On 23 December 2010 the Cherkasy Regional Court of Appeal quashed that judgment. It noted, in particular, that the search warrant issued by the court on 23 July 2007 had never been revoked, and that in any event only the first applicant’s husband and not the first applicant herself could claim to be a victim of the search in question, as her name had not been mentioned in the search warrant.

12. The first applicant appealed on points of law, arguing, in particular, that both she and her husband had suffered as a result of the search, as they shared the same home.

14. In June 2011 the second applicant instituted civil proceedings against the Cherkasy Regional Police Department and the State Treasury, seeking damages for the arbitrary search of his home and grounds.

15. On 31 January 2012 the Prydniprovskyy District Court in Cherkasy dismissed the second applicant’s claim. It found that although the search warrant had been issued on the basis of forged material, it had never been revoked. Accordingly, the police officers who had carried out the search itself were not at fault. As the faulty intent that was necessary to found an action in tort was missing, there was no basis in tort law to award any compensation to the second applicant. The court also found no grounds to apply the statutory rules for compensation, which were based on strict liability. Finally, the court also stated that the claim had been lodged outside the limitation period.

16. On 28 March 2012 the Cherkasy Regional Court of Appeal held that the limitation period for bringing the claim had not in fact expired but upheld on substantive grounds the first-instance court’s decision to dismiss the second applicant’s claim for damages.

17. On 4 May 2012 the Higher Specialised Court in Civil and Criminal Matters dismissed an application by the second applicant for leave to appeal on points of law.

THE LAW

18. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

19. The applicants complained that their home had been subjected to an unlawful search by the police and that the authorities had failed to appropriately examine their complaints in relation to that matter and to afford equitable relief. They relied on Articles 6, 8 and 13 of the Convention.

20. The Court, which is master of the characterisation to be given in law to the facts of the case (see, as a recent authority, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, 20 March 2018), considers that the case falls to be examined under Articles 8 and 13, which read as follows:

Article 8

“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

“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.”

21. The Government argued that the first applicant had not observed the six-month period for lodging the application. In their view, the applicable period had started to run from the date of the search (23 July 2007), as there had been no effective domestic remedies for the first applicant’s complaint. In this connection, they referred to the Court’s findings under Article 13 in Vladimir Polishchuk and Svetlana Polishchuk v. Ukraine (no. 12451/04, 30 September 2010).

23. The Court notes that the objection raised by the Government in respect of the first applicant’s complaints is similar to the objections the Court has already dismissed in other cases against Ukraine (see, in particular, Vladimir Polishchuk and Svetlana Polishchuk , cited above, §§ 38-39; Ratushna v. Ukraine , no. 17318/06, §§ 62-65, 2 December 2010; and Zosymov v. Ukraine , no. 4322/06, §§ 51-55, 7 July 2016). It considers that its findings in the above-mentioned cases are likewise pertinent in the present case.

24. The Government’s objection concerning the first applicant’s non ‑ compliance with the six-month rule should therefore be dismissed.

25. The Court further finds that the complaints raised by both applicants are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

26. The applicants submitted that their home and grounds had been unlawfully searched by the police and there had been no effective domestic remedies for their complaints.

27. The Government abstained from commenting on the merits of the first applicant’s complaints, reiterating that her application had been lodged outside the six-month time-limit. They contended that there had been no violation in respect of the complaints raised by the second applicant, as the search had been performed pursuant a search warrant issued by a competent court and, based on the documents in the authorities disposal at the material time, it was necessary in a democratic society.

(a) Article 8

28. The Court finds that the search in question constituted an interference with the applicants’ right to respect for their private life and their home; this issue is not in dispute between the parties. The question remains whether this interference was justified under paragraph 2 of Article 8 and, first of all, whether the measure was “in accordance with the law” for the purpose of that paragraph.

29. The Court reiterates that the expression “in accordance with the law” in Article 8 § 2 of the Convention essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof (see, among other authorities, Panteleyenko v. Ukraine , no. 11901/02, § 49, 29 June 2006).

30. In the instant case, the Court notes that it was established at the domestic level that the search warrant had been obtained unlawfully, as the police had used falsified documents to justify their request (see paragraph 7 above). The substance of that conclusion has never been overruled, although the ensuing criminal proceedings were closed in view of the death of the principal suspect. The Court therefore concludes that the search conducted pursuant to the warrant issued on the basis of falsified material was not conducted “in accordance with the law” (compare Panteleyenko , cited above, §§ 51-53, and Vladimir Polishchuk and Svetlana Polishchuk, cited above, §§ 45-48).

31. These findings are sufficient for the Court to conclude that there has been a breach of Article 8 of the Convention.

(b) Article 13

32. As regards the applicants’ complaint under Article 13 of the Convention, in the light of the Court’s well-established case-law (see, in particular, Vladimir Polishchuk and Svetlana Polishchuk , cited above, §§ 54-57; Golovan v. Ukraine , no. 41716/06, §§ 70-71, 5 July 2012; Ratushna , cited above, §§ 87-88; Bagiyeva , cited above, §§ 59-65; and Nedilenko v. Ukraine [Committee], no. 43104/04, §§ 84-86, 18 January 2018), it finds that the applicants have not had an effective remedy for their complaints within the meaning of Article 13 of the Convention.

33. It considers that in the present case there has likewise been a breach of Article 13 of the Convention.

34. 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.”

35. The applicants claimed 50,000 Ukrainian hryvnias (UAH) each in respect of non ‑ pecuniary damage.

36. The Government argued that these claims were exorbitant and unsubstantiated.

37. The Court, ruling on an equitable basis, awards the applicants jointly 4,000 euros (EUR) in respect of non-pecuniary damage.

38. The first applicant also claimed 2,650 United States dollars (USD) for translation costs and correspondence expenses. She submitted receipts in Ukrainian hryvnias, from which it appears that the reference to dollars was a technical mistake, and, in fact, the first applicant intended to seek the above sum in hryvnias. The second applicant claimed UAH 2,150.50 in translation, copying and postage expenses. He submitted relevant receipts.

39. The Government submitted that they would leave the issue to the Court’s discretion, provided that the Court would consider the first applicant’s claim in hryvnias, as it was meant to be formulated.

40. Regard being had to the documents in its possession and to its case ‑ law, the Court considers it reasonable to award the applicants jointly EUR 160 covering costs under all heads.

41. 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,

(a) that the respondent State is to pay the applicants jointly, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 160 (one hundred and sixty euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(b) 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 22 July 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller Lətif Hüseynov Deputy Registrar President