Published on 10 July 2023

FIFTH SECTION

Application no. 81481/17 Kostyantyn Valentynovych TSYRKUN against Ukraine lodged on 20 November 2017 communicated on 19 June 2023

SUBJECT MATTER OF THE CASE

The application concerns the lawfulness of the applicant’s arrest, in breach of Article 5 § 1 of the Convention, and the search of his home without a court warrant, allegedly in breach of the domestic law and Article 8 of the Convention.

The applicant was the head of a tax inspection office in the Autonomous Republic of Crimea during the presidency of Mr Yanukovych. On 24 May 2017 a large-scale special operation was carried out jointly by various prosecution and police units, as a result of which over twenty former tax officials, the applicant among them, were arrested on suspicion of having participated, between 2011 and 2014, in a large tax evasion scheme allegedly organised by Mr Yanukovych and other high-level officials.

On 24 May 2017 the law enforcement authorities carried out a search of the applicant’s home with reference to Article 233, paragraph 3, of the Code of Criminal Procedure (“the CCP”). This provision empowers the investigative and prosecutorial authorities to enter private property and carry out search operations without prior judicial authorisation in “urgent circumstances connected to saving human lives, property or the immediate apprehension of individuals suspected of having committed a criminal offence”. The above-mentioned provision also obliges the law enforcement authorities to obtain ex post facto judicial authorisation for their search operations. The applicant states that the search of his home did not fall under any of those categories (urgent circumstances) and that no ex post facto judicial authorisation was obtained.

Upon completion of the search, the applicant was arrested. His arrest was based on Article 208 § 1 (3) of the Code of Criminal Procedure which reads as follows: “1. [In the absence of a court order] a competent official is entitled to arrest ( затримати ) a person suspected of having committed a crime for which a prison sentence may be imposed, only in the following cases: ... (3) where there are reasonable grounds to discern a risk of absconding by a person suspected of a serious or particularly serious corruption-related criminal offence which is subject to investigation by the National Anticorruption Bureau of Ukraine.” After his arrest, a notification of suspicion ( повідомлення про підозру ) was served on the applicant. On the following day the Pecherskyy District Court of Kyiv imposed on the applicant an obligation to appear before the investigator and released him from detention. The court furthermore addressed the applicant’s grievance regarding the unlawfulness of his arrest and found that the material available did not indicate the existence of a risk of the applicant’s absconding at the moment of his arrest. On 7 June 2017 the Kyiv City Court of Appeal quashed the above-mentioned decision and ordered the applicant’s detention, without addressing his grievance regarding the unlawfulness of his arrest. On 20 September 2017 the applicant was released on bail.

QUESTIONS TO THE PARTIES

1. Was the applicant’s arrest, on the basis of the report of 24 May 2017, in accordance with the procedure prescribed by the domestic law, as required by Article 5 § 1 of the Convention (see, for example, Strogan v. Ukraine , no. 30198/11, §§ 85-89, 6 October 2016)? In particular, did the authorities comply with the conditions for an arrest without a warrant provided for by Article 208 § 1 (3) of the Code of Criminal Procedure?

2. Has the applicant exhausted domestic remedies for his complaint under Article 8 of the Convention?

3. Has there been a violation of Article 8 of the Convention on account of the search operation in the applicant’s home? The parties are invited, in particular, to comment on the following matters:

(a) Was the search in the applicant’s home ex post facto authorised by the court?

(b) Has the concept of “urgent circumstances” in Article 233, paragraph 3, of the Code of Criminal Procedure been defined in domestic law with sufficient precision to meet the foreseeability requirements?

The Government are invited to provide any police instructions, case-law material and other domestic instruments relevant to the interpretation of the requirement of “urgent circumstances” as defined in Article 233, paragraph 3, of the Code of Criminal Procedure;

(c) Did the applicable domestic framework contain sufficient procedural safeguards for limiting the discretion of the law enforcement authorities in using the powers conferred on them by Article 233, paragraph 3, for entering and searching the applicant’s home without prior judicial authorisation?

The Government are invited to provide statistics, if any, indicating the percentage of cases in which the investigating judges refused to provide ex post facto authorisation for search operations conducted under the “urgent circumstances” clause.

(d) Have the authorities complied with applicable domestic law in the present case?

(e) Was the disputed search operation necessary in a democratic society?