FIFTH SECTION

CASE OF BAGIYEVA v. UKRAINE

( Application no. 41085/05 )

JUDGMENT

STRASBOURG

28 April 2016

FINAL

28/07/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Bagiyeva 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 Claudia Westerdiek , Section Registrar ,

Having deliberated in private on 22 March 2016 ,

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

PROCEDURE

1 . The case originated in an application (no. 41085/05) 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, Ms Tetyana Grygorivna B agiyeva (“the applicant”), on 4 November 2005 .

2 . The applicant was represented by Mr V. Sizonenko, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Acting Agent, Ms O. Davydchuk .

3 . The applicant alleged under Articles 8 and 13 of the Convention that her flat had been searched in breach of her right to respect for her home , and that there had been no effective remed ies in respect of that violation.

4 . On 28 March 2011 the application was communicated to the Government .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1958 . She divorced her husband, B., in 1992. At the time of the events, she was living with her daughter , who was a minor, in a flat in Kyiv.

6 . On 7 March 2005 police officers arrested B. for an administrative offence at Kyiv Pasazhyrskyy r ailway s tation. Following the arrest, t he police officers found that a driving licence he had shown them did not bear all the requisite information and had a series number linked to an other person in the police database .

7 . On 8 March 2005 criminal proceedings were instituted against B. for document forgery committed in conspiracy with others. On that day the police recorded telephone conversations between B. and the applicant which suggest ed that certain documents relating to his driving licence and his study in the driving school had been kept in her flat. The record ed conversations were later documented in a report on 31 October 2005.

A. Search of the applicant ’ s flat

8 . On 10 March 2005 an investigator with the Pivdenno-Zakhidn a r ailway p olice d epartment , who was dealing with the criminal case against B., applied to the Shevchenkivskyy District Court in Kyiv for search warrants for two flats, including the one belonging to the applicant, where, according to the investigator, B. permanently resided.

9 . On 11 March 2005 the Shevchenkivskyy District Court of Kyiv issued the search warrants. Only the investigator was present at t he hearing. With regard to the applicant ’ s flat, the court found that it was necessary to carry out a search of th e flat where B. permanently resided and where the forged documents, as well as the means of and instruments for forging the documents, might be kept .

10 . On the same day the investigator decided to carry out the search of the applicant ’ s flat . Upon their arriv al , the investigator and the other police officers present found that the flat was locked and that nobody responded when they rang the bell. According to the statements of the police officers, as submitted to the investigative authorities, they had contacted the applicant to inform her about the search. According to the applicant , on that day she and her daughter had left for their cottage outside the city; she had had her mobile phone with her and had not been contacted by the police .

11 . The police officers called a task force to open the door to the flat . Once the door had been opened , the investigator and three police officers carried out the search, with two attesting witnesses and a representative of the building maintenance organisation in attendance . In the course of the search the police officers seized items of property , which they listed in a report. The list includ ed , among other things : floppy disks, compact discs, vehicle registration certificates, keys, a box containing cash , certificates issued in B. ’ s name, a painting and an icon.

12 . On 14 March 2005 the applicant returned home and found the door to her flat damaged and sealed. With the investigator ’ s permission , she entered the flat and found that it was in a state of dis array . She also found that some items of property not included in the list of seized items were missing : four mobile phones, top-up cards for mobile phones , jewels and a bottle of whisky.

B. Domestic proceedings

13 . T he applicant made a complaint to the law-enforcement authorities regarding the actions of the police officers carrying out the search. She claimed that requirements of domestic law had been breached in the course of the search and that some items of property had disappeared .

1. Investigation into the alleged theft

14 . On 19 April 2005 the Kyiv t ransport p rosecutor ’ s o ffice commenced a criminal investigation with regard to the possible theft of the applicant ’ s property.

15 . On 5 July 2005 the applicant was granted victim status and her civil claim was admitted to the file. On the same day the investigation was suspended , as it was not possible to identify the possible perpetrators of the crime.

16 . On 1 October 2005 the Kyiv c ity p rosecutor ’ s o ffice reversed the decision of 5 July 2005 as regards the suspension of the proceedings , finding that the investigation had not been carried out comprehensi ve ly: the pe ople participating in the search of the applicant ’ s flat had not been questioned properly , the mobile phones and the top-up cards had not been found , and the investigati ve measures implemented had not been properly documented .

17 . On 30 November and 26 December 2005 certain seized items, including the painting, the icon and the missing mobile phones, were returned to the applicant .

18 . On 28 December 2005 the transport prosecutor ’ s office of Kyiv refused to investigate the possible neglect of official duties by the police officers as regards the failure to fully document the items seiz ed . It considered that the mobile phones had not been included in the list of seized items owing to a technical mistake. The phones had been given back to the applicant and, consequently, she had sustained no damage. It was concluded in the end that there had been no objective evidence to suggest that the police officers had neglected their duties .

19 . On 9 June 2006 the Kyiv c ity p rosecutor ’ s o ffice found that the investigation into the alleged theft had not been carried out thoroughly , and had been delayed. It requested the Kyiv city prosecutor ’ s office to organise a proper investigation of the case.

20 . On 30 June 2006 an investigator with the Kyiv t ransport p rosecutor ’ s o ffice terminated the investigation , stating that there had been no evidence to suggest that any item had been stolen from the applicant ’ s flat during the search.

21 . The applicant challenged that decision in court.

22 . On 7 August 2006 the Holosiyivskyy District Court of Kyiv dismissed the applicant ’ s complaint , considering that the investigator had taken the necessary measures and had lawfully closed the case .

23 . The applicant appealed.

24 . On 16 November 2006 the Kyiv City Court of Appeal quashed the first-instance court ’ s decision of 7 August 2006 and the investigator ’ s decision of 30 June 2006 as unsubstantiated , and remitted the case for further investigation.

25 . As of 22 July 2011 the investigation was ongoing . No further information was provided to the Court.

2. I nquir y into the abuse of power or ultra vires actions by the police officers

26 . On 16 June 2005 the Kyiv t ransport p rosecutor , having conducted a pre-investigation inquiry, refused to commence criminal proceedings in relation to the possible abuse of power or ultra vires actions by the police officers during the search of the applicant ’ s flat. In his decision , the prosecutor referred to the statement of a police officer that the applicant had been contacted on her mobile phone and informed that the search would be carried out, and t he door to the flat had only been broken down after her refusal to appear . The prosecutor also stated that the search had been carried out in accordance with established procedure ; it had been observed by two attesting witnesses and the representative of the building maintenance organisation, as required by the domestic law.

27 . On 21 June 2005 the applicant challenged the decision of 16 June 2005 in court.

28 . On 7 July 2005 the Holosiyivskyy District Court of Kyiv found that the decision of 16 June 2005 was well-founded. The court stated that the prosecutor had adopted the decision after interview ing the police officers, two attesting witnesses, and a representative of the building maintenance organisation who had been involved in the search, in addition to the applicant and her former husband. The court further stated that the prosecutor had examined the search warrant , search report and other relevant documents , and had come to the correct conclusions when refusing to open an investigation.

29 . The applicant appealed.

30 . On 8 September 2005 the Kyiv Court of Appeal upheld the decision of 7 July 2005 , finding that the prosecutor had lawfully refused to open an investigation. T he applicant ’ s contentions were dismissed as groundless.

31 . The applicant appealed on points of law .

32 . On 25 November 2005 the Supreme Court dismissed the applicant ’ s appeal, noting that the impugned court decisions were not open to review.

II. RELEVANT DOMESTIC LAW

A . Criminal Code of 5 April 2001 (as worded at the relevant time)

33 . Article 162 of the Code provide d :

“ 1. Unlawful entry into a dwelling or other property of a person , or the unlawful examination or search thereof, or 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 non-taxable minimum income , or up to two years ’ correctional labour, or 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.”

34 . Article 364 of the Code provide d :

“1. Abuse of power or office, that is , the intentional use by an official of his or her power or office contrary to official interests for financial gain or other personal benefit or benefit to a third party , if it has caused serious damage to State or public interests or to the lawful interests, rights and freedoms of natural or legal persons –

shall be punishable by up to two years ’ correctional labour or up to six months ’ detention ( арешт ) , or 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, ...

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 confiscation of property.”

35 . Article 365 § 1 of the Code provide d :

“ E xceeding the limits of power or office, that is, 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.”

B . Code of Criminal Procedure (“the CCP”) of 28 December 1960 (in force at the relevant time)

36 . Article 4 of the CCP provide d :

“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.”

37 . Article 127 of the CCP provide d , inter alia , that in the course of a search at least two attesting witnesses had to be present. The witnesses had to be unbiased. The attesting witnesses could not be chosen from the victims, their relatives, the relatives of the suspect or the accused , or the officers of the body of inquiry or the investigation.

38 . Article 177 of the CCP provided , inter alia , that a search could be carried out if there were sufficient grounds to believe that the means of committing a crime, items (including valuable items) which had been obtained in a criminal way, and items and documents important to the case were being kept on certain premises. A search of a person ’ s home and other possession s could only be conducted on the basis of a reasoned court decision, except in urgent cases. The court decision ordering a search was not open to appeal.

39 . Article 181 of the CCP provide d :

“The search and seizure shall be carried out in the presence of two attesting witnesses and the person occupying the searched premises and – in the event of the latter ’ s absence – a representative of the building maintenance organisation or the local council.

A s earch and seizure on premises occupied by enterprises, institutions and organisations shall be carried out in the presence of their representatives. As far as possible , the person whose property is being searched, or an adult member of his/her family, and also the victim, if the latter ’ s appearance is necessary, should be present during the search. ...”

40 . Article 183 of the CCP provide d :

“...When conducting a search the investigator shall have the right to open locked premises and storages if the occupier refuses to open them. The investigator, however, shall avoid causing unnecessary damage to doors, locks and other property...”

THE LAW

I. ALLEGED VIOLATION S OF ARTICLE S 8 AND 13 OF THE CONVENTION

41 . The applicant complained that the search of her flat had constituted a violation of her right to respect for her home , and that the authorities had failed to examine and effectively investigate her complaints on that matter. She relied on Articles 8 and 13 , which provide:

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

42 . The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. T he parties ’ submissions

43 . The applicant maintained her complaints , insisting that certain seized items had not been returned by the police and that the domestic investigation s into the incident had not been effective.

44 . The Government admitted that the search of the applicant ’ s flat had constituted an interference with her right to respect for her home as set out in Article 8 of the Convention. They submitted , however, that the interference had been in accordance with domestic procedure and had had a legal basis, it had pursued the legitimate aim of preventing crime, and had been necessary in the circumstances of the case. Referring to the information officially recorded in the report of 31 October 2005 which document ed telephone conversation s between B. and the applicant , t he Government argued that the search had been a necessary measure , as the police had had information that certain documents important to the criminal proceedings against B. had been kept in the applicant ’ s flat . Furthermore, relying on the statements of the police officers, the Government submitted that the applicant had been informed of the search and she had therefore been given an opportunity to be present during the procedure .

45 . The Government further submitted that the question of the procedural obligation to investigate the applicant ’ s allegations of wrongful search fell under Articles 8 and 13 of the Convention. The y maintained that the authorities had carried out an effective investigation into all the aspects of the incident . In particular, they had instituted criminal proceedings in relation to the alleged theft of the applicant ’ s property and had taken a number of investigat ive measures in that regard . However, a s of 22 July 2011 the investigation was still ongoing . Furthermore, the authorities had carried out a pre-investigati on inquir y in relation to the possible abuse of power or ultra vires actions by the police officers. T heir decision of 16 June 2005, consequently refusing to open an investigation , had been upheld by the domestic courts. Lastly, as regards civil redress, the Government submitted that the applicant would be able to claim damage s if the people responsible were identified and prosecuted in the course of the relevant criminal proceedings .

2. The Court ’ s assessment

46 . The Court will first examine under Article 8 of the Convention whether the search of the applicant ’ s flat constituted an interference with her right to respect for her home , and whether that interference was justified. Secondly, the Court will examine whether the applicant had at her disposal effective procedures to put right the alleged violation . T he Court finds it appropriate to examine the second issue solely under Article 13 of the Convention.

(a) Article 8 of the Convention

(i) Whether there was an interference

47 . It is a common ground between the parties that the search of the applicant ’ s flat by police authorities constituted an interference with her right to respect for her home. The Court does not have any reason to hold otherwise .

( ii ) Whether the interference was in accordance with the law

48 . The Court notes that the search was carried out on the basis of a court decision, as required by Article 177 of the CCP . The interference therefore had a basis in domestic law, as submitted by the Government. The questions as to the proper reasoning behind the search warrant and the exact application of the domestic procedure in the absence of the applicant, as prescribed by Article s 181 and 183 of the CCP , shall be addressed below in the course of the examination of the necessity and proportionality of the interference.

( iii ) Whether the interference pursued a legitimate aim

49 . In the light of the circumstances of the present case, t he Court accepts the Government ’ s submission that the interference pursued the legitimate aim of preventing crime.

( iv ) Whethe r the interference was necessary in a democratic society

50 . The Court reiterates that , where States consider it necessary to resort to measures such as searches of residential premises in order to obtain evidence of offences , it will assess whether the reasons adduced to justify such measures were relevant and sufficient , and whether the proportionality principle has been adhered to ( Buck v. Germany , no. 41604/98, § 45, ECHR 2005 ‑ IV) . The Court will also explore the availability of effective safeguards against abuse or arbitrariness under domestic law , and check how those safeguards operated in the specific case being examined ( see Iliya Stefanov v. Bulgaria , no. 65755/01, § 38, 22 May 2008 ) .

51 . The applicant ’ s home was searched on the basis of a court decision. P rior judicial authorisation of the search wa s an important safeguard against abuse . The fact that the search warrant was issued in the absence of the applicant is not problematic in itself , since a domestic court may have good reasons to issue a search warrant at an ex parte hearing (see Tamosius v. the United Kingdom (dec.), no. 62002/00, ECHR 2002-VIII , and Avanesyan v. Russia , no. 41152/06 , § 29, 1 8 September 2014 ).

52 . The Court notes that, in describing the scope of the proposed search operation, the domestic court referred to “forged documents”, as well as to “the means of and instruments for forging documents” . It did not provide any further detail , even though it could have done so , given the scope of the criminal case which dealt with the documents belonging or relating to the applicant ’ s former husband and the alleged forgery. It has to be noted that the vagueness and excessively broad terms of search warrants giving the authority executing them unjustified discretion in determining the real scope of the search have been earlier criticised by the Court (see Smirnov v. Russia , no. 71362/01, § 47, 7 June 2007; Iliya Stefanov v. Bulgaria , cited above, § 41; Aleksanyan v. Russia , no . 46468/06 , § 216, 22 December 2008; and Kolesnichenko v. Russia , no . 19856/04 , § 33, 9 April 2009). Similarly, having regard to the broad terms of the search warrant in the present case, the Court does not consider that prior judicial authorisation of the search proved to be an appropriate safeguard against the possible abuses of power during its execution.

53 . With respect to the manner of the interference , the search was carried out in the applicant ’ s absence and this eventually necessitated the breaking down of the door to her flat . W hether or not the applicant was forewarned of the search is a matter in dispute between the parties . The Court considers that it was for the authorities to properly establish that the applicant had been forewarned of the search. However, the Court has not been presented with convincing material to that effect. It notes in th is respect that the statements of the police officers cannot be regarded as impartial evidence to show that they had called the applicant before entry into the flat, giving her an opportunity to avoid causing damage to her property and participate in the procedure.

54 . Furthermore, in addition to the above conclusion that the search warrant did not set out appropriate limits for the scope of the search , it is notable that the police officers seized a number of items which did not even fall within the wide scope of the search as set out by the court : the mobile telephones, box containing cash, painting and icon could hardly come under the scope of the search warrant issued and the criminal proceedings relating to the driving licence forgery . Remarkably, the authorities subsequently admitted that the y had seiz ed the mobile phones , which had initially not been included on the list of seized items. Only belatedly did they return the phones and some other items of property irrelevant to the criminal case to the applicant . In that regard , the Court observes that the attesting witnesses and the representative of the building maintenance organisation , invited by the police to participate in the search did not ensure that the seized items were accurately listed in the report , or that the seizure fitted the scope defined in the sea r ch warrant.

55 . In these circumstances , the Court considers that the available safeguards with in the domestic law turned out to be insufficient , and that the search of the applicant ’ s home constituted an interference which was not proportionate to the aim sought.

56 . It concludes that there has been a violation of Article 8 of the Convention.

(b) Article 13 of the Convention

57 . 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).

58 . In the light of the above finding of a violation of Article 8, the Court considers that the applicant ’ s complaint was arguable. Accordingly, i t must be determined whether the Ukrainian legal system afforded her an “effective” remedy which allow ed the competent national authority to both deal with the complaint and grant appropriate relief (see, for example, Camenzind v. Switzerland , 16 December 1997, § 53, Reports 1997 ‑ VIII).

59 . It has to be noted at the outset that the search warrant issued by the court was not open to appeal. As regards the possibility of institut ing civil proceedings against the police officers, 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) , where a civil claim in respect of an unlawful search had not been considered by the domestic courts , mainly because the claimant had not been directly involved in the relevant criminal proceedings.

60 . In the present case , the applicant was likewise not a party to the criminal proceedings in which the search was ordered . In fact, t he Government did not argue that she had been in a position to lodge a separate civil claim. On the contrary, they submitted that she would be able to claim damage s for the wrongful search of her home in the event that the individuals responsible were identified and prosecuted in the course of relevant criminal proceedings. The Court therefore concludes that a separate civil action was not available to the applicant .

61 . The Government maintained that the applicant ’ s allegations were effectively examined in the course of the relevant criminal inquir y and investigation. The Court notes that , in addition to the theft, the domestic criminal law provide d for a series of offences which potentially cover ed the actions complained of by the applicant (see paragraphs 33 - 35 above). Moreover, the applicant ’ s civil claim was joined to the criminal case concerning the alleged theft for a joint examination of criminal responsibility and civil liability arising from the same culpable actions (see paragraph 15 above ). Accordingly, the Court will examine whether the criminal procedure s pursued by the applicant w ere effective for the purposes of Article 13 of the Convention.

62 . According to the Court ’ s well-established case-law, the minimum standards of effectiveness include the requirements that an investigation is independent, impartial and subject to public scrutiny, and that competent authorities act with exemplary diligence and promptness (see, among many other authorities, Aleksandr Nikonenko v. Ukraine , no. 54755/08 , § 44 , 14 November 2013 ). In this connection , the Court notes that the criminal proceedings in relation to the applicant ’ s allegations regarding the disappearance of her property w ere repeatedly criticised by the supervising prosecutors , who admitted that the investigation had not been carried out comprehensively and promptly (see paragraphs 16 and 19 above ). The decision of 30 June 2006 terminating the investigation was reviewed by the domestic courts and eventually reversed as unfounded (see paragraph 24 above) . Based on the information provided by the parties, the Court considers that the investigation , which was ongoing at least for more than six years , lacked the required thoroughness and promptness and proved to be ineffective.

63 . As regards the pre-investigation inquir y in relation to the abuse or ultra vires actions , the Court notes that th e investigative procedure d id not comply with the principles of an effective remedy , because the i nquiring officer c ould only take a limited number of procedural steps within that procedure at a point where the victim ha d no formal status, thus excluding her effective participation in the procedure (see Golovan v. Ukraine , no. 41716/06 , § 75, 5 July 2012 ). T he Court notes that neither the inquiring offic er nor the courts reviewing the decision of 16 June 2005 considered whether the search had been conducted within the scope defined by the search warrant. As noted above, the number of seized items meant that the search went beyond the limits establish ed by the court in its search warrant. Furthermore, it does not appear that appropriate measures were taken to examine whether the police officers had indeed forewarned the applicant , and whether they had complied with their du ty of care as stated in Article 183 of the CCP. In particular, no attempt was made to ver ify the police officers ’ statements that they had inform ed the applicant of the search operation.

64 . In the light of the above considerations , with regard to the violation claimed, the Court finds that the domestic authorities failed to carry out an effective investigation into the incident and negated the applicant ’ s expectations of obtaining any retrospective relief, including redress under civil law .

65 . The Court thus concludes that the applicant did not have an effective remedy in respect of h er complaint under Article 8 of the Convention. There has therefore been a violation of Article 13 of the Convention.

II . APPLICATION OF ARTICLE 41 OF THE CONVENTION

66 . 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.”

67 . The applicant did not submit a claim for just satisfaction within the fixed time-limit . Accordingly, the Court considers that there is no call to award her any sum in this respect ( Muravskaya v. Ukraine , no. 249/03, § 52, 13 November 2008) .

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1. Declares the application admissible;

2 . Holds that there has been a violation of Article 8 of the Convention;

3 . Holds that there has been a violation of Article 13 of the Convention .

Done in English, and notified in writing on 28 April 2016 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Claudia Westerdiek Angelika Nußberger Registrar President