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FIFTH
SECTION
CASE OF
RATUSHNA v. UKRAINE
(Application
no. 17318/06)
JUDGMENT
STRASBOURG
2 December
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Ratushna v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Rait
Maruste,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Ganna
Yudkivska,
judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 9 November 2010,
Delivers
the following judgment:
PROCEDURE
- The
case originated in an application (no. 17318/06) 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 Motrona Petrivna
Ratushna (“the applicant”), on 21 April 2006.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- The applicant complained, in particular, that a search
of her house by the police was in breach of her right to respect for
her home guaranteed by Article 8 and that she had had no
effective remedies at her disposal in that respect, contrary to
Article 13 of the Convention.
- On 11 March 2009 the Court decided to give notice of
the application to the Government. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 1). The case was given priority under Rule 41 of
the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1922 and lives at 4a V. Street in Nova
Obodivka. Between 2004 and 2007 she had some health problems, having
suffered, in particular, from a stroke, pneumonia and
atherosclerosis.
A. Search of the applicant’s home and related
events
- On
6 March 2002 an operational enquiry officer (оперуповноважений)
of the Trostyanets Town Police Department submitted the following
report to the chief of police:
“... According to the information received in the
course of the search operations (оперативно-розшукові
заходи), items
[earlier] stolen from [a shop in Nova Obodivka] ... were in the
possession of [Mr R., the applicant’s son] at 14 V. Street in
Nova Obodivka. Furthermore, information has been received that the
aforementioned person keeps poppy straw and a small calibre handgun.
I therefore request that you seek to obtain a search
warrant with a view to searching the household of [Mr R.].”
- On
12 March 2002 the Trostyanets Town Court (“the Trostyanets
Court”) issued a ruling stating the following:
“The investigator ... has requested the court to
issue a warrant for searching the household of [Mr R.], where stolen
items could be hidden.
Having heard the investigator and having studied the
case, the court considers that there are reasons for allowing the
application.
During the night of 20-21 February 2002, food, liquor
and cigarettes worth a total of UAH 1,198.94 were stolen from [a]
private [shop] ... in Nova Obodivka ...
On 6 March 2002 [an operational enquiry officer] of the
Trostyanets Town [Police Department] informed the investigation unit
that the stolen items, as well as rifled firearms and drugs, could be
stored in the household of [Mr R.].
It can be seen from the investigator’s
explanations and the material in the case file that there are grounds
for considering that the stolen items could be kept at the household
of [Mr R.].
Pursuant to Article 177 of the Code of Criminal
Procedure, the court:
grants the application
authorises the search of the household of [Mr R.], who
resides at 14 V. Street in Nova Obodivka...
The ruling is not subject to appeal.”
- On
15 March 2002, after the applicant’s son, Mr R., arrived at the
applicant’s house at 4a V. Street, six police officers entered
the yard. Having produced the warrant, they conducted a search of the
house and the entire property, in the presence of the applicant, Mr
R. and two attested witnesses. According to the police report of the
same date, the search was held at 8 V. Street and resulted in the
discovery of a gas pistol in the cupboard in the living room, a
packet of bullets in the attic above the kitchen and a package of
cannabis outside on the ground between the barn and the beet-pulp
pit. The report contained a remark by Mr R., according to which the
search of his mother’s house had been unlawful and conducted in
spite of her objections. He also contended that the bullets and drugs
had been planted by the police officers or their driver during the
search.
- On
the same date the police questioned the applicant, who submitted that
her son had voluntarily handed over the gas pistol, while the bullets
and drugs had apparently been planted by the police, whose actions it
had been impossible to follow given the number of the persons
involved.
- On
25 March 2002 the investigator decided that there was no reason to
initiate criminal proceedings on account of the discovered drugs and
bullets, as they had been found in places unsuitable for storage and
it was impossible to prove that Mr R. was responsible. Following
additional investigation ordered by the Vinnytsia Regional
Prosecutor’s Office, on 27 August 2004 the investigator
reiterated that conclusion.
B. Legal and factual domicile of the applicant’s
son
- Between
November 1998 and January 2003 Mr R. had an officially
registered place of residence in Nova Obodivka. Subsequently, he
changed it to 51 K. Street in Trostyanets.
- On
20 October 2003 the Trostyanets Council issued a certificate to
Mr R., at his request, stating that he owned, since 1985, a
house, a garage and a land plot at the above-mentioned address in
Trostyanets.
- On
30 August 2004 the Nova Obodivka Council issued similar certificates
“to whom [they] may concern” stating that Mr R. did not
live and had no property in that village.
- According
to the findings of the criminal investigation into the applicant’s
complaint concerning the search of her home (see paragraph 22 below),
the actual residence of Mr R. with the applicant at 4a V. Street in
Nova Obodivka had been confirmed by witnesses living in that village
and corroborated by the presence of his personal belongings there and
by the fact that he had been paying electricity bills for the
household in question.
- On
1 August 2007 four inhabitants of buildings nos. 47 and 49 in
K. Street in Trostyanets gave a written statement that Mr R. had
been their neighbour at 51 K. Street between September 2001 and
October 2002. They noted that he had been living with and had been
taking care of a seriously ill person, Ms D., who had died of cancer
in October 2002. The Trostyanets Council certified the authenticity
of the above statement.
- On
the same date, the Trostyanets Council issued a certificate to Mr R.,
stating that between September 2001 and 1 October 2002 he had
permanently lived at his own house at 51 K. Street in Trostyanets.
- The
references to 14 V. Street and 8 V. Street in Nova Obodivka in the
search warrant and in the police report following the search
respectively (see paragraphs 7 and 8 above) were inaccurate. As later
found by the domestic investigation authorities and courts, that was
a result of a technical error (see paragraphs 22, 25 and 26 below).
C. Criminal complaints brought by the applicant
- On
an unspecified date in March or May 2002 the applicant complained to
the Vinnytsia prosecutor and the Regional Department of the Ministry
of the Interior that the search of her house had been unlawful and
sought the criminal prosecution of the respective police officers.
- On
24 May 2002 the second of the above-mentioned authorities wrote a
letter to her accepting that her allegations had indeed been
confirmed in part. It was noted in the letter that the police
officers responsible for the violations of the criminal procedures
had been disciplined, while the case file had been sent to the
Trostyanets Town Prosecutor’s Office (“the Trostyanets
prosecutor”) for criminal investigations to be instituted.
- Between
February 2003 and May 2006 the criminal case was closed six times for
a lack of corpus delicti in the actions of the police officers
and subsequently reopened following the quashing of the respective
rulings of the investigating officers either by the prosecution
authorities or by courts on grounds of incompleteness of the
investigation.
- On
an unspecified date (presumably in 2005) the case file was marked as
“classified” for unknown reasons. Following the
applicant’s administrative claim the Trostyanets Court found
the classification of the file unlawful, ordered its declassification
and awarded the applicant 300 Ukrainian hryvnias in compensation
for non-pecuniary damage.
- On
12 March 2007 the Vinnytsia prosecutor decided, for the seventh time,
to terminate the criminal investigations finding that there had been
nothing criminal about the police officers’ actions. The fact
that there were discrepancies as regards the address indicated in the
search warrant (14 V. Street), the search report (8 V.
Street) and the actual address of the building where the search had
been conducted (4a V. Street) was merely a technical error: the
numbering of buildings in the village had changed some time
previously, while, in any event, the villagers knew each other and
had given the police directions. Having regard to the fact that Mr R.
had a registered domicile in Nova Obodivka, kept his gas pistol there
and paid the electricity bills, the police had rightly decided that
that was his actual place of residence, not in Trostyanets. The
prosecutor also considered that there had been a reasonable suspicion
that the items stolen from the local shop could have been found at
the household of Mr R. He referred in that connection to the early
investigation information, according to which a car similar to that
of Mr R. had been seen in the shop’s vicinity during the night
when the theft had taken place. Furthermore, Mr R. was unemployed and
had friendly relations with a certain Mr P. previously convicted for
thefts. As to the applicant’s allegation that the drugs and
bullets had been planted by police, it had not been corroborated by
any evidence.
- On
10 May 2007 the Leninskyy District Court of Vinnytsia (“the
Leninskyy Court”) quashed the aforementioned decision and
ordered an additional investigation. It noted that it remained
unclear whether there had indeed been sufficient grounds to believe
that the stolen items could have been found at the applicant’s
home. The court further pointed out that the submissions of the
applicant’s son that, at the time of the events, he had been
living in Trostyanets, where he had been taking care of a severely
sick person, had not been verified.
- On
25 May 2007 the Vinnytsia Regional Court of Appeal (“the Court
of Appeal”) quashed the above-mentioned ruling on the
prosecutor’s appeal and remitted the case back to the
first-instance court.
- On
31 August 2007 the Leninskyy Court found against the applicant,
concluding that the search had been duly ordered and held in
compliance with the procedural legislation.
- On
22 November 2007 and 18 June 2008 respectively, the Court of Appeal
and the Supreme Court upheld the first-instance court’s
decision.
D. Civil action for damages
- In
June 2002 the applicant lodged a civil claim with the Trostyanets
Court against the police seeking compensation, under Article 440-1 of
the Civil Code, for non-pecuniary damage on account of the search of
15 March 2002 which she considered to have been in breach of the
constitutional guarantee of the inviolability of her home. In
substantiation of her claim, the applicant referred to the fact that
the warrant on the basis of which the search had been conducted
concerned an address different from hers (14 versus 4a V.
Street).
- On
10 December 2002 the court decided that the claim could not be
examined under the civil procedure.
- The
applicant appealed. It appears that her appeal was successful, as the
examination of the case continued and on 19 February 2003 the case
was transferred to the Tulchyn Town Court (“the Tulchyn
Court”), with the reasons for the transfer being unknown.
- On
20 October 2003 the Tulchyn Court suspended the proceedings at the
applicant’s request pending the outcome of the criminal
investigations.
- On
an unspecified date the proceedings were resumed and the case was
transferred back to the Trostyanets Court.
- On
19 June 2008 the applicant increased the amount of her claim.
- On
26 June 2008 the court found against her. It concluded that there
were no grounds for compensation in her case as envisaged by the Law
of Ukraine “On the Procedure for the Compensation of Damage
caused to Citizens by the Unlawful Actions of Bodies in charge of
Operational Enquiries, Pre-trial Investigation Authorities,
Prosecutors or Courts” (“the Compensation Act”). In
particular, in order for the applicant to be eligible for such
compensation, there had to be a guilty verdict in respect of the
police officers involved. Given the refusal of the prosecution to
institute criminal proceedings in respect of her complaint concerning
the alleged unlawfulness of the search, the court considered that the
lawfulness of that search was an established fact, which could not be
revised within the civil proceedings.
- The
applicant appealed.
- On
22 August 2008 the Court of Appeal quashed that judgment and
discontinued the proceedings, finding that the claim concerned a
public-law dispute and thus fell within the administrative rather
than civil procedure.
- On
25 March 2009 the Supreme Court quashed the above-mentioned ruling of
the appellate court and remitted the case to it, finding that it had
wrongly concluded that the administrative procedure applied to the
case, when in fact the claim represented an action in tort related to
a search conducted within the framework of criminal investigations.
- On
7 May 2009 the Court of Appeal quashed the judgment of 26 June
2008 and remitted the case for fresh examination to the
first-instance court, pointing out some shortcomings which could only
be rectified by a rehearing. Thus, the Trostyanets Court had failed
to involve in the proceedings the investigator in charge of the
search, as well as the State Treasury. Furthermore, it had not taken
into consideration the amendments to the applicant’s claim of
19 June 2008. The Court of Appeal also noted in its ruling that the
applicable procedure for compensation was envisaged by the
Compensation Act, which “directly [concerned] the dispute at
issue”.
- The
case remains pending before the Trostyanets Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article
30 of the Constitution (1996) guarantees the inviolability of
everyone’s home. It prohibits entry into a person’s home
or other property and the examination or search thereof, other than
pursuant to a reasoned court decision.
- Article
162 of the Criminal Code (2001) envisages imprisonment of between two
and five years as punishment for unlawful entry into a house or other
property and the unlawful examination or search thereof, as well as
for other actions in breach of the inviolability of a home committed
by an official.
- Article
177 of the Code of Criminal Procedure (1960) requires that for a
search of a house or other property to be conducted, there must be
sufficient grounds to believe that the items to be searched for might
be found there and a reasoned court decision authorising the search.
Such a decision by a court cannot be appealed against. Article 183 of
the Code requires the investigating officer in charge of the search
to serve the search warrant on the person(s) occupying the respective
premises. If the items searched for are not given to the
investigating officer voluntarily, the latter must conduct the search
forcibly.
- Article
440-1 of the Civil Code (1963), in force at the material time,
provided that compensation for non-pecuniary damage was to be paid by
the person who had inflicted that damage, if he or she did not prove
his or her lack of guilt.
- Article
1176 § 2 of the new Civil Code, in force since 1 January 2004,
provided for compensation to be paid in respect of unlawful actions
of inquiry bodies, prosecution authorities or courts in cases where
the claimant had been acquitted by a court’s verdict, where an
unlawful verdict in his respect had been set aside, or where the
criminal or administrative-offence case had been terminated. After
the amendments of 1 December 2005, the aforementioned list was
replaced by the phrase “in cases envisaged by law”.
- The
relevant provisions of the Compensation Act, as worded before the
amendments of 1 December 2005, and the Search and Seizure Activities’
Act are summarised in the judgment of Volokhy v. Ukraine
(no. 23543/02, §§ 27-28, 2 November 2006).
- Following
the amendments to the Compensation Act of 1 December 2005, the list
of cases where the right to compensation would arise was expanded by
the following point:
“1-1) where ... unlawfulness of a search conducted
in the framework of a criminal investigation or trial ... has been
established by a guilty verdict or other judgment of a court (save
for rulings on remittal of cases of additional investigation)”.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained about a violation of her right to respect for
her home raising, in particular, the following arguments: the search
of 15 March 2002 had been unjustified; it had been based on a
warrant with a wrong address and which was not amenable to appeal;
the search had wrongly been conducted in the entire property; it had
been performed with brutality; and the police officers had planted
drugs and arms. She relied on Article 8 of the Convention, which
reads, in the relevant part, as follows:
“1. Everyone has the right to respect
for ... his home ....
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.”
A. Admissibility
1. Non-exhaustion of domestic remedies
- The
Government contended that the applicant could not be regarded as
having exhausted domestic remedies. They submitted that her complaint
concerning the alleged brutality of the police during the search and
the further allegation that it had been conducted in spite of her
objections and beyond the limits set by the warrant had never been
raised, even in substance, before the domestic courts. As regards the
other part of her complaint concerning the alleged unlawfulness of
the search, the applicant’s civil action for damages remained
pending before the first-instance court. The Government considered
that by having lodged a civil claim she had in fact recognised the
effectiveness of that remedy, but was not patient enough for the
proceedings to be completed. In substantiation of the effectiveness
of such a remedy, the Government submitted a copy of a judgment of a
first instance court by which the plaintiffs were awarded
damages from a pre-trial detention centre on account of the
inadequate medical care provided by that facility. The Government
also noted that there was sufficient funding allocated in the State
budget for compensation for any wrongdoing on the part of the police.
- The
applicant contested these arguments. In her opinion, she had done
everything in order to exhaust domestic remedies and could not be
expected to wait for an unlimited period of time for the resolution
of her case at the domestic level.
- In
accordance with Article 35 § 1 of the Convention, the Court may
only deal with an issue after all domestic remedies have been
exhausted. The purpose of this rule is to afford the Contracting
States the opportunity of preventing or putting right the violations
alleged against them before those allegations are submitted to the
Court (see, for example, Selmouni v. France [GC], no.
25803/94, § 74, ECHR 1999 V).
- The
Court observes that the Government’s objection in the present
case is based on two arguments, which it will examine separately.
- The
first argument concerns the scope of the complaints raised by the
applicant before the domestic courts and those brought in her present
application, which the Government considered not to be identical.
- The
Court notes that the complaint submitted to the Court should indeed
have first been made to the appropriate national courts, at least in
substance, in accordance with the formal requirements of domestic law
and within the prescribed time-limits (see Zarb Adami v. Malta
(dec.), no. 17209/02, 24 May 2005).
- In
the present case the applicant alleged in her domestic civil claim a
violation of the constitutionally guaranteed inviolability of her
home, which the Court considers to be fully concordant with her
complaint raised in the application to Strasbourg in respect of the
alleged violation of her right to respect for her home enshrined in
Article 8 of the Convention.
- The
Court does not share the Government’s view that the applicant’s
allegations, in particular concerning the brutality of the police and
the conduct of the search despite it exceeding the limits set by the
warrant, should be considered as separate and self-sufficient
complaints. It perceives them as additional arguments submitted by
the applicant in substantiation of her complaint under Article 8 of
the Convention mentioned above.
- The
Court therefore concludes that the applicant did raise the Article 8
complaint in substance before the domestic courts and dismisses the
Government’s objection based on that argument.
- The
second aspect of the Government’s objection concerns the
applicant’s failure to await the outcome of the domestic civil
proceedings which they considered to be an effective domestic remedy
in her case.
- The
Court underlines that the only remedies to be exhausted are those
which are effective (see, among other references,
A.B. v. the Netherlands, no. 37328/97, §
69, 29 January 2002). Accordingly, in order to decide whether the
applicant was under the obligation to exhaust the aforementioned
remedy, the Court will examine whether it complied with the criteria
of effectiveness established in its case-law. Thus, the remedy must
be “effective” in practice as well as in law, in
particular, in the sense that its exercise must not be unjustifiably
hindered by the acts or omissions of the authorities of the
respondent State (see Aksoy v. Turkey, 18 December 1996,
§ 95, Reports of Judgments and Decisions 1996-VI).
- The
Court further emphasises that the exhaustion rule is neither absolute
nor capable of being applied automatically; for the purposes of
reviewing whether it has been observed, it is essential to have
regard to the circumstances of the individual case. This means, in
particular, that the Court must take realistic account not only of
the existence of formal remedies in the legal system of the
Contracting State concerned, but also of the general context in which
they operate, as well as the personal circumstances of the applicant.
It must then examine whether, in all the circumstances of the case,
the applicant did everything that could reasonably be expected of him
or her to exhaust domestic remedies (see Akdivar and Others v.
Turkey, 16 September 1996, § 69, Reports of Judgments and
Decisions 1996 IV).
- The
Court notes that the compensatory proceedings instituted by the
applicant in the present case in respect of the allegedly unlawful
search of her house remain pending before the first-instance court.
Although the remedial action at issue did not concern putting an end
to an ongoing violation, but rather obtaining redress for an alleged
violation which had already occurred, the Court considers that its
speediness was an important factor in the present case given the
applicant’s advanced age. The Court
does not accept the Government’s view that the applicant, being
in her late eighties, who waited in vain for over seven years
to see her claim to be examined, should be reproached for what they
consider to be a lack of patience. In the circumstances, the Court
views the continuous failure of the domestic courts to adjudicate on
her civil claim as a serious omission undermining the effectiveness
of this remedy “in practice”. The Court therefore
concludes that the applicant did not have an effective remedy at her
disposal which she would have been under an obligation to exhaust in
order for her application to become eligible for examination by the
Court.
- It
follows that the complaint under Article 8 of the Convention cannot
be declared inadmissible for non-exhaustion of domestic remedies.
2. The six-month rule
- The
Court observes that the applicant’s complaint under Article 13
of the Convention (see paragraph 84 below) suggests that there was no
effective remedy to exhaust in her situation.
- The
Court notes that, according to its well-established case-law, where
no domestic remedy is available, the six-month period runs from the
date of the act complained of (see, for example, Hazar and Others
v. Turkey (dec.), nos. 62566/00 et seq., 10 January 2002).
However, special considerations could apply in exceptional cases
where an applicant first avails himself or herself of a domestic
remedy and only at a later stage becomes aware, or should have become
aware, of the circumstances which make that remedy ineffective. In
such a situation, the six-month period could be calculated from the
time when the applicant becomes aware, or should have become aware,
of these circumstances (see Volokhy, cited above, § 37).
- Turning
to the facts of the present case, the Court observes that the
application was introduced on 21 April 2006, whereas the alleged
violation of the applicant’s rights under Article 8 of the
Convention took place on 15 March 2002.
- The
Court notes that the applicant succeeded in instituting compensatory
proceedings. Having regard to the specificity of the considerations
which led the Court to conclude that the remedy at issue was
ineffective (see paragraph 59), it considers that such
ineffectiveness was not obvious to the applicant from the outset. She
could reasonably be considered to have had doubts to that regard only
with the passage of time, namely, after the domestic courts had
expressed several conflicting views concerning the legal basis and
jurisdiction applicable to her case and transferred her claim back
and forth without examining it in substance (see paragraphs 28-29,
31, 33 and 35-37 above).
- The
Court therefore considers that the applicant’s complaint under
Article 8 of the Convention cannot be rejected for non-compliance
with the six-month time-limit pursuant to Article 35 § 1 of the
Convention.
3. Otherwise as to the admissibility
- The
Court further notes that this part of the application is neither
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention nor inadmissible on any other grounds. It should
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant maintained her complaint. She contended, in particular,
that there had been no reason whatsoever to suspect that her son had
been storing the items expected to have been discovered in the search
or that her house had been the right place for undertaking such a
search, given that her son had been living in a different town at
that time.
- While
admitting that there was an interference with the applicant’s
right to respect for her home, the Government submitted that it had
been in compliance with the second paragraph of Article 8 of the
Convention. They maintained that the search had been in compliance
with the law, had been necessary for investigating a crime and had
been proportionate to the aim pursued. The Government contended that
the decision to carry out a search had been based on a reasonable
suspicion that the applicant’s son, whose place of residence
was found to be the same as that of the applicant, might have been
keeping some stolen items, arms and drugs. Moreover, the search
warrant had been subjected to prior judicial control, while the
search itself had been conducted in accordance with the procedural
rules, after the warrant had been shown to the applicant in the
presence of two attested witnesses. Accordingly, the Government
considered that the applicant had enjoyed sufficient safeguards
against abuse. As to the discrepancy between her address and that
indicated in the search warrant, they maintained that this had been
the result of a merely technical error.
2. The Court’s assessment
- It is common ground between the parties that the
search complained of amounted to an interference with the applicant’s
right to respect for her home, and the Court sees no reason to hold
otherwise.
- The
Court notes that the search had a legal basis in domestic law, being
based on Article 177 of the Code of Criminal Procedure (see
paragraphs 7 and 41 above).
- The
Court further observes that the search at issue was ordered in the
context of a criminal investigation initiated following a theft. It
therefore served a legitimate aim, namely the prevention of crime. It
remains to be examined whether the interference was “necessary
in a democratic society”.
- 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. 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 under examination. Elements to be taken
into consideration in this regard include, but are not limited to,
the manner and circumstances in which the order was issued, in
particular further evidence available at that time, as well as the
content and scope of the order, having particular regard to
the safeguards taken in order to confine the impact of the measure to
reasonable bounds (see Buck, cited above, §§ 44-45).
- Turning
to the present case, the Court notes that the search of the
applicant’s home was conducted under a warrant issued by the
Trostyanets Court and was therefore subject to judicial scrutiny.
However, this mere fact will not in itself necessarily amount to a
sufficient safeguard against abuse (see Cronin (dec.), cited
above). In assessing whether the State’s interference was
proportionate, the Court must consider the particular circumstances
of each case (see, for example, Camenzind v. Switzerland,
16 December 1997, § 45, Reports of Judgments and
Decisions 1997 VIII).
- The impugned search took place in the context of
investigating the theft from the local food shop, of which the police
suspected the applicant’s adult son. The Court accepts that the
task of uncovering evidence of a crime might necessitate a search on
a third party’s premises (see and compare with Buck v.
Germany, no. 41604/98, § 48, ECHR 2005 IV). This factor
is however to be borne in mind in application of the proportionality
test.
- The
Court notes that, in order to grant a warrant for a search of a house
or other property, the Ukrainian courts are required by law to be
satisfied that there are sufficient grounds to believe that the items
to be searched for might be found there (see paragraph 41 above).
- As
it transpires from the facts related to the subsequent investigation
into the applicant’s criminal complaint concerning the search
in question, the Trostyanets Court had some evidence before it
suggesting that the applicant’s son, Mr R., could have been
involved in the investigated theft and that in fact he was living,
permanently or for a considerable part of the time, in the
applicant’s house (see paragraph 22 above). Thus, there existed
a witness statement, according to which a car similar to that of the
applicant’s son had been seen near the shop at the night of the
theft. Furthermore, Mr R. was unemployed and had been reported to
have friendly relations with a thief convicted in the past. Lastly,
although there were witnesses’ statements that the applicant’s
son had been based in a different town at the time of the events,
there was factual and testimonial evidence too that he had been
living with the applicant at her house.
- The
Court notes that the aforementioned evidence was capable of giving
rise to the belief that the stolen items could have been kept in the
applicant’s household. It is to be emphasised that the facts
which raise such suspicion need not be of the same level as those
necessary to justify a conviction or even the bringing of a charge,
which comes at the next stage of the process of criminal
investigation (see, for example, Hildebrand v. Germany
(dec.), no. 31513/96, 16 April 1998).
- The
Court next observes that before granting the search warrant, the
Trostyanets Court studied the materials of the search operations’
case-file and heard the investigator in person (see paragraph 7
above). It therefore formed an informed opinion that there indeed
were relevant and sufficient grounds for the search applied for.
- Moreover,
it was neither alleged by the applicant nor is otherwise discernible
from the case-file materials that the judge dealing with the issue
had acted in bad faith or had failed, for any other reasons, to
adequately implement the judicial scrutiny.
- As
regards the reasoning given in the search warrant, the Court notes
that the warrant set out the suspicion having referred to the
information received in the course of the search operations’
measures. Provision of further details as to those measures and their
results might have been rightly deemed unjustified given the very
early stage of the investigation, and, in particular, the fact that
some essential evidence (namely, the stolen items) was yet to be
uncovered.
- The
Court also observes that the search warrant was quite specific in its
scope, containing an explicit and detailed reference to the theft
investigated, with indication of the stolen items and their cost (see
paragraph 7 above).
- In
sum, the Court considers that the search of the applicant’s
home complained of was based on relevant and sufficient reasons and
attended by adequate safeguards against abuse and arbitrariness. The
Court therefore does not regard it disproportionate to the aim
pursued.
- It
follows that there has been no violation of Article 8 in the present
case.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained under Article 13 of the Convention that she did
not have at her disposal an effective remedy in respect of the
alleged violation of her right to respect for her home. She also
complained under Article 6 § 1 of the Convention
about the length of the proceedings in respect of her related civil
claim, which she considered to have mainly undermined the
effectiveness of that remedy.
- The
Court observes that Article 13 has been consistently interpreted in
its case-law as requiring a remedy in domestic law only in respect of
grievances which can be regarded as “arguable” in terms
of the Convention (see, as a classic reference, Boyle and Rice v.
the United Kingdom, 27 April 1988, § 54, Series A no. 131).
The Court reiterates in this connection that the existence of an
actual breach of another provision is not a prerequisite for the
application of Article 13 (see, for example, Hatton and Others v.
the United Kingdom [GC], no. 36022/97, §§ 130,
137 and 142, and Nuri Kurt v. Turkey, no. 37038/97, §
117, 29 November 2005). In the present case, even though the Court
was eventually persuaded that no violation of Article 8 of the
Convention had been made out (see paragraph 83 above), it did not
find the applicant’s complaint in that regard to be prima
facie untenable (see paragraph 66 above) and reached the
aforementioned conclusion only after the examination of its merits.
The Court therefore considers that the applicant did raise an
arguable claim for the purposes of Article 13 of the Convention.
- The
Court notes that the central issue raised by the applicant is the
effectiveness of the national remedies in her case, with the
length of proceedings’ complaint being only one
aspect of it. It therefore considers it appropriate to examine this
part of the application solely under Article 13 of the
Convention, which reads as follows:
“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.”
- The
Court notes that the Government already suggested in their objection
as regards the exhaustion of domestic remedies in respect of the
Article 8 complaint that there were effective remedies at the
applicant’s disposal. In so far as they relied on the same
reasoning by way of their response to the Article 13 complaint, their
arguments must, just like their objection, be rejected on the grounds
described in paragraph 59 above.
- Accordingly,
the Court declares this complaint admissible and finds that, under
the circumstances of the present case, in particular, having regard
to the length of the proceedings, the applicant was deprived of an
effective remedy in breach of Article 13 of the Convention.
III. THE REMAINDER OF THE APPLICATION
- The
applicant also complained, referring to her health problems since
March 2002, that the search of her house had amounted to inhuman and
degrading treatment in breach of Article 3 of the Convention. She
also complained under Article 6 that she had been wrongly denied
access to the file in respect of her criminal complaint and that her
complaints in that regard had not been addressed with due diligence.
- However,
in the light of all the material before it, and in so far as the
matters complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the provisions on which the applicant relied.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected under Article 35 §§ 3 and 4 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
- The
applicant failed to claim any just satisfaction within the specified
time-limit. The Court therefore makes no award under Article 41.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints about the search of the
applicant’s house and the lack of effective remedies in that
respect admissible and the remainder of the application inadmissible;
- Holds that there has been no violation of
Article 8 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention.
Done in English, and notified in writing on 2 December 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
