FIFTH SECTION

Application no. 4322/06 by Igor Viktorovych ZOSYMOV against Ukraine lodged on 21 January 2006

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Igor Viktorovych Zosymov, is a Ukrainian national who resides in Kyiv. He is represented before the Court by Ms N. M. Perestyuk , a lawyer practising in Kyiv .

A. The circumstances of the case

In 1996 the applicant was registered as a private entrepreneur and started a family business (together with O.Z., his wife), which included, in particular, the replication of digital data and the sale of blank data storage devices. They had copying equipment set up in the applicant ’ s mother ’ s flat on P. Street in Kyiv.

1. Criminal investigation into the breach of copyright

At about 7 . 30 p.m. on 20 August 2002 several officers from the Kyiv City Economic Crimes Police Department (“the Kyiv Police”) arrived at the applicant ’ s mother ’ s flat and started inspecting it.

At about 11 . 30 p.m. on the same date the police officers further inspected the applicant ’ s garage and his mother ’ s car, which in effect belonged to the applicant and was habitually driven by him pursuant to a power of attorney from his mother.

As a result of this inspection, the police seized seven computers, sixty-six optical disc (CD-RW) recording devices, a printer, a modem, over three thousand optical discs with recordings, some thirty thousand blank optical discs and some seven thousand printed covers for discs. The seizure was documented on a form entitled “The Act of Examination and Seizure”. According to the form, the operation was terminated at about 3 . 30 a.m. on 21 August 2002.

According to the applicant, the police officers stayed in his office until about 8 . 40 a.m. on 21 August 2002, questioning him, his wife, and the members of his extended family who were present in the premises about his business and about the observance of copyright law in the business ’ s use of software and in its replicating activities.

On an unspecified date the applicant lodged a complaint with the Kyiv City Prosecutor ’ s Office, alleging that the inspection of his mother ’ s flat and car and his garage and the search and seizure of his property had been unlawful.

On 15 November 2002 the Kyiv Police instituted criminal proceedings into breach of copyright under Article 176 of the Criminal Code of Ukraine. In their decision, the police referred to the search of the applicant ’ s and O.Z. ’ s office and the seizure of their belongings on 20 August 2002. They further noted that the applicant and O.Z. had been found not to have a license agreement with law firm S., the official representative of the Microsoft Corporation, whose software the applicant and O.Z. had used in their business, thereby causing damage to the software copyright owner.

On 20 November 2002 the Prosecutor ’ s Office rejected the applicant ’ s request to institute criminal proceedings into the allegedly unlawful entry into the premises and the search and seizure, having noted that those activities had been carried out by the police on the basis of “operational information” concerning breaches of copyright.

On the same date the City Police declared the property seized from the applicant as physical evidence to be stored by the police until the resolution of the criminal case concerning breach of copyright.

On 21 November 2002 the Shevchenkivsky District Court of Kyiv (hereafter “the District Court”) issued search warrants with respect to the applicant ’ s and O.Z. ’ s flats, noting that they were suspected of having breached criminal-law provisions concerning copyright protection.

On unspecified dates the applicant ’ s and O.Z. ’ s flats were searched pursuant to these warrants. As appears from the case file, no items were seized as a result of these searches.

On numerous occasions the applicant asked the Kyiv Police and the Prosecutor ’ s Office to order the return of his seized property. On various dates (24 February and 11 August 2003 and 13 May 2005) the Kyiv Prosecutor ’ s Office rejected his requests, notifying him that his seized property constituted physical evidence in a criminal case and based on Article 81 of the Code of Criminal Procedure its fate could not be determined separately from the final resolution of the case.

On 4 April 2004 the Kyiv Police informed the applicant that there were no grounds for instituting a criminal case against him personally, as there had been insufficient evidence that he had replicated copyrighted materials.

On several occasions (27 September and 29 November 2004) the Kyiv Prosecutor ’ s Office rejected requests by the applicant to have the criminal proceedings discontinued on the basis that the proceedings were time ‑ barred, having noted that such ground for discontinuation could only be applied to proceedings in which a particular person had been indicted.

On 25 February 2005 the Kyiv Police rejected a request by the applicant to have the criminal proceedings discontinued for lack of corpus delicti , having noted that such ground for discontinuation also presupposed the identification of a particular defendant.

As of March 2006 the criminal proceedings were pending, no investigative measures in the applicant ’ s respect having been ordered and his property remaining in the control of the police as physical evidence in the case.

2. Defamation proceedings against the Kyiv Police

On 22 August 2002 a report was published on the Ministry of Interior ’ s website, which stated that the Kyiv Police had:

“... in the course of operational and investigative activities ... identified a criminal group of two [individuals]. These two [individuals] organised an entire underground production [facility] in their office. With the help of computer equipment they replicated CD-ROMs containing various programs and games.”

The report then enumerated the seized items, the total value of which was estimated at 117,000 hryvnias (UAH) and featured a photograph of O.Z. without a caption.

On an unspecified date the applicant instituted defamation proceedings against the Central Department of the Ministry of Interior and officer K., who had signed the report, seeking the retraction of the above information.

On 27 October 2003 the District Court allowed his claim.

This judgment was not appealed against and became final.

3. Proceedings concerning the alleged unlawfulness of the inspection, search, seizure and institution of criminal proceedings

In April 2003 the applicant lodged an administrative complaint against the Kyiv Police with the District Court. Referring to Article 248 of the Code of Civil Procedure of 1963 in force at the material time, he alleged that the inspection of his premises, the search and seizure of his property in August 2002 and the institution of criminal proceedings on 15 November 2002 had been unlawful.

He subsequently reformulated his claims, seeking the annulment of the decision of 15 November 2002 to institute criminal proceedings. Referring, in particular, to Article 30 of the Constitution of Ukraine and to Articles 14 ‑ 1, 178, 180 and 186 of the Code of Criminal Procedure of Ukraine, he noted that on 20 August 2002 the police had conducted an unlawful search and seizure of his property from his mother ’ s private flat, his garage and the car which had been in his possession without a court warrant or following the institution of criminal proceedings. He further noted that the aforementioned actions had been taken at night-time and that following the institution of criminal proceedings he had never been summoned to participate in any investigative activities. He alleged that the proceedings at issue had been instituted unlawfully in order to prevent him having his seized property returned.

On 26 June 2003 the District Court rejected the applicant ’ s complaint for lack of standing. In particular, it noted that the disputed criminal proceedings had been instituted “into the matter” rather than “against the applicant”, who had no official procedural status in the proceedings at issue. His rights had therefore not been breached.

The applicant appealed, stating, in particular, that he had been a de facto suspect in the proceedings at issue and had been substantially affected by them – in particular, on account of the lack of opportunity for him to reclaim his seized property until the case was resolved.

On 17 September 2003 the Kyiv City Court of Appeal (“the Appeal Court ”) annulled the District Court ’ s decision and discontinued the proceedings. It noted that applicable law did not provide for the possibility of appealing separately against the decisions of the law-enforcement bodies to institute criminal proceedings and their actions taken in the course of the criminal investigation. Such actions could only be challenged in court after the case was transferred to court for consideration and as part of the criminal proceedings themselves.

The applicant appealed in cassation.

On 13 July 2004 the Supreme Court of Ukraine quashed the previous decisions and remitted the case for fresh consideration. It noted, in particular, that on 30 January 2003 the Constitutional Court of Ukraine had declared unconstitutional the provisions of Articles 234 and 236 of the Code of Criminal Procedure which made it impossible to appeal against the decisions of the law-enforcement authorities concerning the institution of criminal proceedings. It further noted that it followed from the Constitutional Court ’ s reasoning that the courts should likewise admit for consideration complaints about other procedural acts, decisions or inaction on the part of the investigative authorities, if such acts, decisions or inaction could result in damage to individual constitutional rights, which, by virtue of delayed judicial review, could be irreparable or hard to remedy. The Supreme Court further noted that there was sufficient evidence that the applicant had been substantially affected by the criminal proceedings at issue – in particular, regard being had to the search of his premises and the seizure and retention of his belongings. It further noted that the proceedings appeared to be protracted without any justification and instructed the lower courts to verify whether the conduct of the investigative authorities could indicate ulterior motives aimed at concealing unlawful acts on their part which had breached the applicant ’ s rights.

On 14 October 2004 the District Court allowed the applicant ’ s complaint and revoked the decision of 15 November 2002. It noted, in particular, that regard being had to the grounds for taking this decision, the proceedings had required to be instituted against the applicant, who had been a de facto suspect in relation to breach of copyright. Institution of the proceedings “into the matter” had been artificial and had restricted the applicant ’ s procedural rights. The court further stated that the police officers ’ actions which had lead to the institution of the proceedings had been unlawful, regard being had, in particular, to the inspection of the premises at night-time, in the absence of the flat owner and in view of other procedural violations.

On 3 November 2004 the Kyiv Prosecutor ’ s Office appealed against this decision.

On 24 December 2004 the Appeal Court quashed the District Court ’ s decision and remitted the case for further criminal investigation. It noted, in particular, that by assessing the lawfulness of the investigative actions, the District Court had, in fact, touched upon the admissibility of evidence, which matter could only be examined in the course of a criminal trial. It further found that by instituting the criminal proceedings “into the matter” rather than “against the applicant” the police authorities had not caused irreparable damage to the applicant ’ s constitutional rights such as would necessitate the annulment of their decision by way of judicial proceedings. Any irregularities in the formulation of the decision to institute criminal proceedings could be more appropriately addressed by the prosecutorial authorities.

The applicant appealed in cassation, alleging, in particular, that the Appeal Court had breached procedural rules in admitting the Prosecutor ’ s Office ’ s appeal. In particular, he submitted that the initial complaint had been brought against the Kyiv Police and that the Prosecutor ’ s Office had therefore lacked standing in the proceedings. Furthermore, the appeal had been lodged after the expiration of the seven-day procedural time-limit for its lodging, the question of restoration of the time-limit having neither been raised, nor examined by the judicial authorities.

On 25 July 2005 the Supreme Court refused to consider the applicant ’ s request for leave to appeal in cassation, referring to its lack of jurisdiction over the subject matter of the proceedings.

B. Relevant domestic law

1. Relevant provisions of the Constitution of Ukraine and the Code of Civil Procedure of 1963

Relevant provisions of the Constitution of Ukraine have been summarised in the Court ’ s judgment in the case of Panteleyenko v. Ukraine (no. 11901/02 , § 27, 29 June 2006). Relevant provisions of the Code of Civil Procedure of 1963 in force at the material time have been summarised in the Court ’ s decision in the case of Ulyanov v. Ukraine (no. 16472/04 (dec.), 5 October 2010).

2. Relevant provisions of the Code of Criminal Procedure of Ukraine of 1960

The relevant provisions of Articles 110, 177 and 178 of the Code of Criminal Procedure of Ukriane of 1960 have been summarised in the Court ’ s decision in the case of Ulyanov v. Ukraine , cited above.

Other relevant provisions of the Code read as follows:

Article 81. Decision of issue s concerning physical evidence

“I ssue s concerning physical evidence shall be decided in the judgment , decision or ruling of the court or r uling of the body of inquiry, the investigator, [or] the prosecutor on the discontinuation of the case ...”

Article 98. Procedure for the institution of proceedings

“ ... In the event that by the time of the in stitution of the criminal case the person who committed the offence ha s been identified, the proceedings should be instituted against th at person ...”

Article 180. Time for carrying out of search and seizure

“ Searches and seizures, sa v e for in urgent situations, shall be carried out during daytime. ”

Article 234. Complaining about the acts of the investigator

“ Acts of the investigator can be complained about to the prosecutor ...

Acts of the investigator can be complained about to the court s .

Complaints about the acts of the investigator shall be considered by the court of first instance during the preliminary consideration of the case or during the trial, unless otherwise envisaged by this Code .”

3. Ruling of the Constitutional Court of Ukraine of 30 January 2003

The r elevant parts of the ruling read as follows:

“ ... [T]he institution of a criminal case against a particular person taken in breach of the requirements of the Code of Criminal Procedure of Ukraine ... may ... cause such damage to the constitutional rights and freedoms [of that individual] as a result of untimely judicial supervision that their restoration becomes impossible.

Making it impossible for the court to consider complaints against a decision to institute criminal proceedings against a particular person during the pre-trial investigation stage, [or] postponement of their examination by the court until the preparatory hearing of the criminal case or trial, [would] delay judicial supervision and restrict the constitutional human right of access to justice, which is the guarantee of all [other] rights and freedoms of a citizen.

...

Appeals to a court against the decisions of the investigator and the prosecutor to institute criminal proceedings against a particular person shall be examined by the court under the rules of criminal procedure. The court, [if] examining such appeals during the pre-trial investigation stage, shall examine the existence of reasons and grounds for taking such [a] decision and shall not examine and decide in advance such matters that the court should decide during the criminal trial, as this would be in breach of the constitutional foundations of justice.

...

The Constitutional Court has held :

...

2. To declare unconstitutional the provisions of paragraph six of Article 234 [and] paragraph three of Article 236 of the Code of Criminal Procedure of Ukraine that make it impossible for the court to consider appeals at the pre-trial investigation stage against the decisions of the investigator or prosecutor concerning [the] reasons [and] grounds [for] and procedure [concerning the] institution of a criminal case against a particular person. ...”

COMPLAINTS

The applicant complains under Article 6 of the Convention of the unreasonable length of criminal proceedings de facto imputing his liability for breach of copyright.

He further complains under Article 8 of the Convention that the inspection and search of his office, car and garage on 20 and 21 August 2002 were unlawful and not necessary in a democratic society.

The applicant next complains under the same provision that the law-enforcement authorities published defamatory information about his family.

He also complains under Article 1 of Protocol No. 1 that his property was unlawfully seized and retained by the police.

In addition, the applicant complains under Article 13 of the Convention that he has lacked a remedy for the above complaints.

Finally, the applicant cites Article 14 of the Convention and Article 2 of Protocol No. 7 with reference to the facts of the present case.

QUESTIONS TO THE PARTIES

1. Was A rticle 6 § 1 of the Convention under its civil or criminal head applicable to the applicant ’ s complaint concerning the length of criminal proceedings in the present case? If so, w as the length of the se proceedings in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

2. Has there been a violation of the appli cant ’ s right to respect for his private life and home, contrary to Article 8 of the Convention , on account of inspection and search of his business premises, car and garage on 20 and 21 August 2002 ?

3. Has the seizure of the applicant ’ s computer equipment, optical discs and other property on 20 August 2002 and the law-enforcement authorities ’ refusal to return this property to the applicant until the resolution of the criminal proceedings been lawful within the meaning of Article 1 of Protocol no. 1 to the Convention? If so, did such seizure and retention impose an excessive ind ividual burden on the applicant?

4. Did the applicant have at his disposal an effective domestic remedy for his Convention complaints under Article s 6 and 8 of the Convention and Article 1 of Protocol No. 1 , as required by Article 13 of the Convention? In particular:

(a) could the proceedings by way of which the applicant challenged the decision to institute criminal proceedings into breach of copyright constitute an effective remedy for his complaints under the above provisions? If so, did the Kyiv City Court of Appeal act lawfully and fairly in admitting the Prosecutor ’ s Office ’ s appeal against the decision of 14 October 2004 for consideration?

(b) have there been any other avenues under domestic law for the applicant to have the lawfulness of the police ’ s actions on 20 ‑ 21 August 2002 reviewed (for example, in civil or administrative proceedings) and to have the property seized from him on that date returned? The Government are invited, in particular, to submit examples of domestic jurisprudence (if any) whereby analogous claims have been examined on the merits and allowed.