Communicated on 5 July 2019

FIFTH SECTION

Application no. 80524/12 Mykola Oleksiyovych SOBKO against Ukraine lodged on 1 December 2012

STATEMENT OF FACTS

The applicant, Mr Mykola Oleksiyovych Sobko , is a Ukrainian national, who was born in 1970 and lives in Izyaslav .

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

On 9 June 2010 investigator D. of the Izyaslav police applied to the Izyaslav Court for a warrant to search the applicant ’ s house and grounds. He submitted that according to operative information, items stolen from a certain V. might be there.

On the same date the Izyaslav court issued the warrant and at about 3 p.m. some thirty police officers, including investigator D. and officer Y., the chief of the police department, arrived at the applicant ’ s house.

The officers neither informed the applicant which items they were looking for, nor proposed to surrender any particular object. Instead, they started out by making a comprehensive search as a result of which forty ‑ three various items were seized. They included fourteen World War II medals of the applicant ’ s grandfather, various items of jewellery, Soviet ‑ made marine binoculars, numerous DIY tools, several types of cables, two pumps, two antique clocks, and other objects. According to the applicant, the overall value of the seized items was 42,225.30 hryvnias (UAH; about 4,200 EUR). All these items were loaded into a police vehicle, on the pretext that the investigation would determine what was relevant for the case and return the irrelevant items on the following day. Investigator D., in the meantime, stayed in the yard, making the list of the items seized. However, only a fraction of such items was recorded in this list. Some police officers wandered off with various objects without presenting them to the investigator. Notably, according to the applicant, on the video recording of the search, which was made by the police, one can notice a police officer, wandering off in a random direction with a purse containing the applicant ’ s jewellery. Only a few of the officers actually taking part in the search were mentioned in the search report established by D. Others were not mentioned, including Y., the chief of the local police, whose presence, according to the applicant, is also clearly visible from viewing the recording. The applicant submits that it was not possible to keep track of all the police actions and movements at the moment, in view of the important number of the officers and intensity of their activity.

At the end of the search, the applicant signed a declaration that he had no complaints or remarks concerning the search and seizure report established by D.

It appears that no criminal or other proceedings were instituted against the applicant or any member of his household after the search and no items relevant to the theft from V. were identified.

On different occasions the applicant complained to prosecutorial and law-enforcement authorities concerning allegedly arbitrary search and seizure of his property.

On 21 August 2010 the Deputy Izyaslav Prosecutor took a decision not to institute criminal proceedings into the applicant ’ s complaints. He found that there was no case to answer, as the search had been conducted on the basis of a valid search warrant issued within the framework of a criminal investigation.

On 19 October 2010 and 11 January 2011 some unspecified items seized as a result of the search in the applicant ’ s house were returned to him.

Following the applicant ’ s further complaints, an internal inquiry into the alleged police misconduct was carried out.

On 11 January 2011 investigator B. at the Khmelnytskyy Regional Police, apparently in charge of the inquiry, informed the applicant that no procedural breaches had been established, except protraction in returning the seized items. He noted that investigator D. had been subjected to a disciplinary sanction (reprimand) on this account.

On 11 February 2011, in response to the applicant ’ s further complaints, the Khmelnytskyy Regional Prosecutor informed the applicant that he saw no reason for quashing the decision not to institute criminal proceedings taken on 21 August 2010.

On an unspecified date the applicant instituted civil proceedings alleging that the police officers had acted unlawfully in conducting the search and the seizure and that some of the seized items were still kept by the police without any justification. He also claimed compensation for moral and pecuniary damage.

On 4 April 2011 the Izyaslav Court refused to consider the applicant ’ s complaint insofar as it related to alleged unlawfulness of the police actions in respect of the disputed search and seizure, having found that the matter fell to be determined in criminal proceedings only.

On 3 June 2011 the Khmelnytskyy Regional Court of Appeal upheld this ruling.

On an unspecified date this ruling was further upheld by the Higher Specialised Court in Civil and Criminal Cases.

On 16 November 2011 the Izyaslav Court rejected the applicant ’ s claim for compensation of damages. It noted, in particular, that, according to the documents on the file, the items seized from the applicant ’ s household had been restituted either to him personally, against his signature, or to their lawful owners (no details specified). Insofar as the applicant alleged that he had been the owner of further seized items, which had not been documented in the police reports, there was no conclusive evidence to corroborate his allegations. In any event, as there was no criminal conviction against any of the police officers or any other court document establishing that the police had committed any unlawful act, there were no statutory grounds for awarding compensation of any kind.

On 15 March 2012 the Khmelnytskyy Regional Court of Appeal dismissed the applicant ’ s appeal against this judgment. The Appeal Court noted, among other things, that the applicant had signed the seizure report on the date of the search, having declared in it that he had no complaints or remarks. It also noted that the applicant had not appealed in court against the prosecutor ’ s office ’s decision of 21 August 2010 not to institute criminal proceedings. Insofar as he referred to witness statements and video ‑ recording of the search to corroborate his allegations, these sources of evidence were unreliable. Notably, the stored video-recording was not the original and it could not be considered authentic.

On 5 July 2012 the Higher Specialised Court in Civil and Criminal Cases rejected the applicant ’ s appeal lodged on points of law.

COMPLAINTS

1. The applicant complains under Article 8 of the Convention that search of his dwelling was not in accordance with the law.

2. He also complains under Article 1 of Protocol No. 1 that his belongings were unlawfully seized and not all of them have been restituted .

3. Finally, he complains under Articles 6 and 13 of the Convention that the domestic courts rejected his claims against the police and that he had not obtained an effective domestic remedy for his complaints.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s right to respect for his private life and home, contrary to Article 8 of the Convention, on account of the search and seizure operation conducted on 9 June 2010?

2. Has there been a violation of the applicant ’ s right to peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? In particular, was the seizure operation conducted in accordance with the law and were all the items taken from the applicant returned to him once it was established that they were irrelevant for the pending criminal proceedings? D id the applicant suffer an excessive individual burden in view of the seizure and/or retention of the seized items by the police?

3. Was the State under the procedural obligation, arising from Article 8 of the Convention and/or Article 1 of Protocol No. 1, to carry out an effective official investigation into the alleged breach of the applicant ’ s rights in the course of the search and seizure operation and retention of his belongings? If so, has the State complied with that obligation?

4. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 8 and Article 1 of Protocol No. 1, as required by Article 13 of the Convention?

The Parties are requested to provide a copy of the warrant authorising the search of the applicant ’ s residence; a copy of the relevant search and seizure report established at the conclusion of the operation; copies of the documents in evidence that the items seized were restituted to the applicant; a copy of the applicant ’ s criminal complaint concerning the police actions during the search operation; copies of his statement of claim and appeals submitted in civil proceedings; and any other documents, which may be pertinent to the elucidation of the relevant facts.