FIFTH SECTION

Application no. 49526/07 Anatoliy Vasylyovych KUZMENKO against Ukraine lodged on 1 November 2007

STATEMENT OF FACTS

The applicant, Mr Anatoliy Vasylyovych Kuzmenko, is a Ukrainian national, who was born in 1974 and lives in Chernigiv.

A. The circumstances of the case

The facts of the case, as presented by the applicant, are as follows.

On an unspecified date the Chernigiv Police requested the Desnyanskyy District Court of Chernigiv (“the District Court”) to issue a warrant to search the applicant ’ s flat in connection with the investigation of theft of a mobile telephone belonging to K., a private person.

On 25 January 2007 the District Court allowed this request, the relevant part of the ruling reading as follows:

“Having heard the acting investigator [and] the opinion of the prosecutor and having examined the materials of the criminal case, the court concludes that the request should be allowed, as the court has been provided with sufficient data indicating a possibility that the mobile telephone “Nokia-7270” may be at the [applicant ’ s] place of residence.”

On 30 January 2007 the police searched the applicant ’ s flat and seized three mobile telephones, which belonged to him and his family members. According to the applicant, on an unspecified date the seized telephones were returned and neither any members of his family nor himself were ever indicted or engaged in any other way in the criminal proceedings at issue.

On 3 March 2007 the applicant lodged an administrative complaint with the District Court alleging that his home had been searched arbitrarily and seeking moral damages. No copy of the statement of complaint ( позовна заява ) filed by the applicant in those proceedings has been provided.

On 5 March 2007 the District Court refused to examine the above complaint, having found that it lacked jurisdiction. It noted that all complaints about the unlawfulness of the procedural actions by law-enforcement authorities taken in connection with a criminal investigation had to be lodged within the framework of the relevant criminal proceedings based on Articles 234 and 236 of the Code of Criminal Procedure of Ukraine.

The applicant appealed against this decision. He alleged that there was no meaningful possibility for him to obtain redress on the basis of these provisions, since the criminal court could examine complaints concerning actions of the investigative authorities only in context of its examination of a criminal case. In the applicant ’ s situation, such a remedy would not be effective, since he had no procedural status in the criminal proceedings at issue and had never been informed of the status of these proceedings. Moreover, it was not certain whether and when they would reach the trial stage. However, as the applicant considered himself a victim of an arbitrary search regardless of the outcome of the relevant criminal investigation, he also considered that he had standing to bring a complaint under Articles 2 and 4 of the Code of Administrative Justice of Ukraine.

On 15 May 2007 the Kyiv Administrative Court of Appeal rejected the applicant ’ s appeal.

The applicant appealed in cassation. He reiterated the arguments raised in his ordinary appeal and noted additionally that his claim for moral damages against the police could not be examined and resolved within the framework of criminal proceedings against a third party.

On 13 May 2009 the Higher Administrative Court of Ukraine further rejected the applicant ’ s cassation appeal.

B. Relevant domestic law

1. Constitution of Ukraine

Article 30

“Everyone shall be guaranteed the inviolability of his or her dwelling.

Any entry into, examination of or search in the 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.”

Article 55

“Human and citizens ’ rights and freedoms are protected by the courts.

Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of bodies of State power, bodies of local self-government, officials and officers. ...

Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.”

2. Code of Criminal Procedure of 28 December 1960 (repealed with the effect of 19 November 2012)

Article 110. Appeal against acts and decisions of the bodies of inquiry

“...Acts and decisions of the bodies of inquiry may be appealed against to the court.

Complaints concerning acts and decisions of the bodies of inquiry shall be examined by the first-instance court in the course of a preliminary hearing in the case or during its examination on the merits, unless otherwise provided for by this Code.”

Article 177. Grounds for a search operation

“A search shall be carried out if there are sufficient grounds to believe that the means of committing an offence ... and other items and documents important for the case are kept on certain premises. ...

A search in a person ’ s home and in other possession may be conducted only on the basis of a reasoned court decision, except for urgent cases. ... A court decision authorizing the search is not subject to appeal.”

Article 234. Complaints in respect of the acts of the investigating officer

“... Complaints in respect of the acts of the investigating officer may be lodged with the court.

The complaints in respect of the actions of the investigating officer shall be considered by the first-instance court in the course of the preliminary hearing in the case or in the course of its consideration on the merits, unless otherwise provided by this Code...”

Article 236. Complaints in respect of the prosecutor ’ s actions

“...A complaint about the prosecutor ’ s actions may be lodged with the court.

Complaints about the prosecutor ’ s actions shall be considered by the first-instance court in the course of the preliminary consideration of the case or in the course of its consideration on the merits, unless otherwise provided for by this Code.”

3. Code of Administrative Justice of Ukraine of 2005

Article 2 . Role of the administrative justice system

“1. The role of the administrative justice system shall be the protection of the rights, freedoms and interests of physical persons, and the rights and interests of legal entities in the field of public-law relations, from violations by public authorities ...

2. Any decisions, actions or omissions to act on the part of the public authorities may be appealed against before the administrative courts, except for cases in which the Constitution and laws of Ukraine foresee a different procedure of judicial appeal against such decisions, actions or omissions to act ...”

Article 4. Adjudication of administrative cases

“...

2. Jurisdiction of the administrative courts shall cover all disputes in the public-law sphere except the disputes, for the judicial resolution of which the law establishes a different procedure.”

COMPLAINTS

The applicant complains under Article 8 that the search of his home was arbitrary as neither any members of his family nor himself were implicated in the criminal proceedings at issue and there were no reasonable grounds to believe that the item searched for would be in his flat.

The applicant also complains that by virtue of the administrative courts ’ refusal to examine his complaint concerning arbitrariness of the search, he had no access to a court and no meaningful avenue to ventilate this complaint. He refers to Article 6 of the Convention in respect of this complaint.

QUESTIONS TO THE PARTIES

1. (a) In respect of the complaint under Article 8 of the Convention that the search of the applicant ’ s flat was neither “lawful” nor “necessary in a democratic society”, has the applicant exhausted the domestic remedies available to him in Ukrainian law? If not, has he complied with the six months ’ rule set out in Article 35 of the Convention?

(b) Assuming compliance with Article 35 of the Convention, was the search of the applicant ’ s flat “lawful” and “necessary in a democratic society” given the applicant ’ s allegations that there were no reasonable grounds to suspect that the telephone searched for might be in his flat?

The parties are requested, in particular, to provide a copy of the applicant ’ s statement of complaint ( позовна заява ) lodged with the administrative courts.

2. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, did the applicant have access to a court in respect of his complaint concerning arbitrariness of the search of his home?

3. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 8, as required by Article 13 of the Convention?