FIFTH SECTION DECISION AS TO THE ADMISSIBILITY OF

Transcription

1 FIFTH SECTION DECISION AS TO THE ADMISSIBILITY OF Application no /04 by Ruslan Anatoliyovych ULYANOV against Ukraine The European Court of Human Rights (Fifth Section), sitting on 5 October 2010 as a Chamber composed of: Peer Lorenzen, President, Renate Jaeger, Karel Jungwiert, Mark Villiger, Mirjana Lazarova Trajkovska, Zdravka Kalaydjieva, Ganna Yudkivska, judges, and Claudia Westerdiek, Registrar, Having regard to the above application lodged on 15 April 2004, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Ruslan Anatoliyovych Ulyanov, is a Ukrainian national who was born in 1970 and lives in Kremenchuk. The Ukrainian Government ( the Government ) were represented by their Agent, Mr Y. Zaytsev.

2 2 ULYANOV v. UKRAINE DECISION A. The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 8 August 2001 the applicant, a lawyer by profession, entered into a legal services agreement with a company, K. Under that agreement K. transferred to the applicant certain bookkeeping documents relating to an ongoing tax dispute with the Kremenchuk Tax Office ( the Tax Office ). On an unspecified date the Tax Office investigator instituted criminal proceedings against the managing directors of K. for engaging in prohibited commercial activity and forging official documents. An expert bookkeeping examination was ordered in the case. 1. Events of 11 and 12 March 2002 On 11 March 2002, following a request by the investigator, the Kryukivskyy District Court of Kremenchuk (the District Court ) ordered the seizure of K.'s bookkeeping documents, which had been transferred to the applicant, from the applicant's home and other property. In its reasoning the District Court noted that the applicant had refused the investigator's request to produce the documents he had received from K. despite the fact that they were needed for an expert examination in the course of criminal proceedings against K.'s managing directors. At about 4 p.m. on the same day police officers from the Tax Office, some wearing masks, entered the applicant's office during a meeting with clients. Referring to the court order for seizure, the officers requested K.'s documents. The applicant refused to produce the documents, arguing that they were privileged under the Bar Act. The applicant was then ordered to stand up and face the wall, following which a masked officer searched him. He was then ordered to empty his pockets. At 4.30 p.m. the applicant was taken from his office, placed in the police car and driven to the Tax Office. According to the applicant, he was forced to leave his office because of his refusal to produce the documents. According to the Government, the applicant agreed to follow the officers of his own free will. At 5.30 p.m., after an interview with the head of the Tax Office, the applicant was driven back to his office. On 12 March 2002, at the investigator's request, the District Court ordered a search of the applicant's home and other property, noting that on 11 March 2002 he had refused to produce documents pursuant to the previous court order for seizure. That night the tax officers searched the applicant's office, car and home but failed to find K.'s documents.

3 ULYANOV v. UKRAINE DECISION 3 2. Challenging the acts of the tax officers of 11 March 2002 On 12 March 2002 the applicant lodged a complaint under Article of the Code of Civil Procedure (the CCvP ), claiming that the officers from the Tax Office who had tried to seize the documents in his office on 11 March 2002 had acted in contravention of the Bar Act. He further claimed that the masked officer had unlawfully ordered him to face the wall, searched him and requested him to empty his pockets. Lastly, the applicant argued that the officers had detained him unlawfully for an hour. On 19 January 2004 the District Court partly upheld the applicant's complaint of 12 March 2002 against the Tax Office, finding that the tax police officers had unlawfully tried to seize documents from the applicant which had been entrusted to him in the course of his professional activities, and that the masked officer had acted unlawfully in ordering the applicant to face the wall, searching him and requesting him to empty his pockets. The District Court further established that the applicant had been detained between 4.30 p.m. and 5.30 p.m. on 12 March 2002, but declined to declare that detention unlawful as the applicant had failed to provide any evidence in that regard. On 20 April 2004 the Poltava Regional Court of Appeal ( the Court of Appeal ) considered the appeal by the Tax Office. Referring to the exceptions to the jurisdiction of the courts listed in Article of the CCvP, the Court of Appeal stated that the applicant's complaint could not be considered in the course of that type of judicial proceedings. It therefore quashed the judgment of 19 January 2004 and discontinued the proceedings in that case. On 20 May 2004 the applicant lodged an appeal in cassation against the decision of 20 April On 9 December 2008 the Higher Administrative Court rejected the applicant's appeal in cassation. The applicant did not provide a copy of that decision. 3. Requests for annulment of the court orders of 11 and 12 March 2002 authorising the search and seizure operations On 7 May 2002, relying on Article of the CCvP, the applicant lodged two complaints with the District Court requesting it to annul the court orders of 11 and 12 March 2002 authorising the search and seizure operations. He claimed that both orders were unlawful as they had been made in breach of the guarantees provided by the Bar Act. On 31 May 2002 the District Court rejected the complaints as inadmissible. It relied on Article of the CCvP, under which the courts did not have jurisdiction for dealing with such complaints. On 10 October 2002 the Court of Appeal upheld the decisions of the District Court of 31 May 2002.

4 4 ULYANOV v. UKRAINE DECISION On 15 October 2003 the Supreme Court rejected an appeal in cassation by the applicant against the lower courts' decisions in respect of his complaint against the search order. On 2 April 2008 the Higher Administrative Court rejected an appeal in cassation by the applicant against the lower courts' decisions in respect of his complaint against the seizure order. B. Relevant domestic law and practice 1. Code of Criminal Procedure of 28 December 1960 Article 110 of the Code provides, inter alia, that the acts and decisions of a body of inquiry can be challenged before a court. The relevant complaints shall be considered by the court during the preliminary hearing or the trial unless another procedure established by this Code applies. Article 177 of the Code provides, inter alia, that a search of a person's home and other property may be conducted only pursuant to a reasoned court order, except in emergencies. If a search is needed, the investigator lodges a request, approved by a prosecutor, with the court located in the district where the investigation is being carried out. A judge is required immediately to examine the request in the light of the case file, and, if necessary, to hear submissions from the investigator and the prosecutor, following which he may authorise the search request or reject it. A court order authorising the search is not subject to appeal. A refusal by the court to allow a search may be appealed against by the prosecutor within three days. Article 178 of the Code provides, inter alia, that the seizure of documents and other items relating to criminal proceedings found in a person's home or other property may be effected only on the basis of a reasoned court order made in accordance with the procedure laid down in Article 177 of the Code. 2. Code of Civil Procedure of 18 July 1963 (in force at the material time) Article of the Code provided that anyone who considered that his or her rights or freedoms had been infringed by a decision, act or omission of a State body, legal entity or official could lodge a complaint with a court. Article and 4 of the Code provided that such complaints were outside the courts' jurisdiction if they concerned a decision, act or omission by an official of a body of inquiry, pre-trial investigation authority, prosecutor's office or court which could be challenged by a different procedure. In accordance with Article of the Code, if such a complaint concerned a dispute that had to be resolved in civil adversarial proceedings,

5 ULYANOV v. UKRAINE DECISION 5 the court had to decline to examine the complaint and explain to the claimant that he was entitled to lodge a civil claim. 3. Decision no. 6-pп/2001 of the Constitutional Court of 23 May 2001 concerning the constitutionality of Article , 4 and 5 of the Code of Civil Procedure of 1963 In this decision, the Constitutional Court declared Article of the Code of Civil Procedure unconstitutional to the extent that it did not give the courts jurisdiction to hear complaints concerning decisions, acts or omissions by officials of bodies of inquiry, pre-trial investigation authorities or prosecutor's offices in cases where the legislation provided only for a non-judicial remedy. It further found that that Article did give the courts jurisdiction to hear complaints concerning the decisions, acts or omissions of court officials if those decisions, acts or omissions were confined to the performance of administrative functions. 4. The Act On the procedure for compensation for damage caused to a citizen by the unlawful acts of bodies of inquiry, pre-trial investigation authorities, prosecutor's offices or courts of 1 December 1994 (as worded at the material time) The relevant provisions of the Act have been summarised in the judgment of Volokhy v. Ukraine (no /02, 28, 2 November 2006). 5. The Bar Act of 19 December 1992 Section 10 of the Act provides that documents relating to an advocate's professional activity may not be examined, divulged or seized without the advocate's consent. COMPLAINTS 1. The applicant complained under Article 6 1 of the Convention that the proceedings in respect of his complaint against the tax police officers had lasted too long. 2. Relying on Article 5 1 of the Convention, the applicant complained that he had been unlawfully detained between 4.30 p.m. and 5.30 p.m. on 11 March The applicant further complained that his office and other property were searched in breach of Article 8 of the Convention. 4. The applicant next complained under Article 13 of the Convention that he had no remedies to challenge the unlawful acts of the police officers in the course of search and seizure operations.

6 6 ULYANOV v. UKRAINE DECISION 5. The applicant also complained that the manner in which the police officers had behaved in his office on 11 March 2002 constituted a violation of Article 3 of the Convention. He complained under Articles 6 and 13 of the Convention that the domestic courts had not properly considered his requests for annulment of the court orders of 11 and 12 March 2002 (authorising the seizure and search operations). The applicant lastly complained under Article 6 1 of the Convention that he had been denied access to a court in respect of his complaint against the tax police officers. THE LAW 1. The applicant complained that the length of the proceedings in respect of his complaint against the tax police officers had been excessive. He relied on Article 6 1 of the Convention, which provides, in so far as relevant, as follows: In the determination of his civil rights and obligations... everyone is entitled to a... hearing within a reasonable time by [a]... tribunal... The Government submitted that the impugned proceedings had not affected the applicant's civil rights and obligations as he had not claimed compensation for pecuniary or non-pecuniary damage caused by the tax police officers. Nor did the proceedings relate to the determination of any criminal charge against the applicant. They insisted therefore that Article 6 1 of the Convention was not applicable. The applicant argued that the proceedings had been civil in nature as he had been challenging the acts of police officers who had allegedly infringed his right to respect for his home and his right to liberty and personal security. He had not submitted any claim for damages as that type of proceedings did not provide for such an option. The Court reiterates that for Article 6 1 in its civil limb to be applicable, there must be a dispute ( contestation in the French text) over a civil right which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is also protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 1 into play (see, inter alia, Mennitto v. Italy [GC], no /96, 23, ECHR 2000-X and Gülmez v. Turkey, no /02, 28, 20 May 2008). The Court notes that the applicant's action under Article of the CCvP could not result in any award of damages to the applicant. It further notes that by means of that action the applicant attempted to challenge the

7 ULYANOV v. UKRAINE DECISION 7 acts of the police officers which had been taken in the course of criminal proceedings. However, the procedure for challenging such acts is provided by Article 110 of the CCrP. Accordingly, by virtue of Article of the CCvP (even in the light of the Constitutional Court decision of 23 May 2001), the applicant's complaint against the police officers could not be examined under Article of the CCvP. The Court therefore considers that the applicant's action under Article of the CCvP did not constitute a remedy capable of addressing his contentions on the merits. These domestic proceedings could not therefore result in a determination of the applicant's civil rights and obligations and it cannot be said that the outcome of those proceedings was directly decisive for such rights and obligations (see, mutatis mutandis, Svenska Flygföretagens Riksförbund and Skyways Express AB v. Sweden (dec.), no /02, 12 December 2006). It follows that Article 6 1 of the Convention does not apply. The present complaint is therefore incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 3 and must be rejected in accordance with Article The applicant complained under Article 5 1 of the Convention that he had been unlawfully detained between 4.30 p.m. and 5.30 p.m. on 11 March He further complained under Article 8 of the Convention that his office and other property were searched unlawfully. Articles 5 1 and 8 of the Convention read, in so far as relevant, as follows: Article 5 (right to liberty and security) 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:... (b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;... Article 8 (right to respect for private and family life) 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 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

8 8 ULYANOV v. UKRAINE DECISION 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. The parties' submissions The Government submitted that the applicant had not been deprived of his liberty within the meaning of Article 5 1 of the Convention. They maintained that the applicant had freely agreed to follow the tax police officers. Moreover, the applicant had been driven back to his office within an hour, once the interview in the Tax Officer had been completed. The applicant's complaint under Article 5 1 of the Convention was therefore manifestly ill-founded. The Government further contended that the applicant had failed to establish that he had been a victim of the alleged violation of Article 8 of the Convention as he had not made a claim for damages at the domestic level. The Government also stated that the applicant had failed to exhaust domestic remedies. They noted that, instead of taking an action under Article of the CCvP, the applicant should have lodged a civil suit under the general provisions of the Civil Code and claim damages. Had such proceedings been taken by the applicant, the domestic courts would have been able to deal with the substance of the applicant's issues and award compensation, if appropriate. As an example of the practical effectiveness of such a remedy they supplied a decision taken by a first-instance court in which the plaintiffs had been awarded damages from the pre-trial detention centre in respect of inappropriate medical care dispensed in that facility. The applicant insisted that he had been deprived of liberty for an hour. He argued that the fact of his detention was established by the court decision of 19 January The applicant further submitted that a civil claim for damages, referred to by the Government, would have had no prospect of success since such a claim could be lodged only in accordance with the Act On procedure for compensation for damage caused to a citizen by the unlawful acts of bodies of inquiry, pre-trial investigation authorities, prosecutor's offices or courts ( the Compensation Act ), which was a lex specialis in relation to the Civil Code, and which was inapplicable in his case. For the same reason the decision referred to as an example by the Government was not relevant as that decision concerned damage caused by a pre-trial detention centre, which was not a domestic body covered by the Compensation Act. B. The Court's assessment The Court reiterates that in accordance with Article 35 1 of the Convention it may only deal with a matter within a period of six months of the final decision in the process of exhaustion. If no remedies are available or if those available are judged to be ineffective, the six-month period in

9 ULYANOV v. UKRAINE DECISION 9 principle runs from the date of the act complained of (see Hazar and Others v. Turkey (dec.), nos /00 et seq., 10 January 2002). Where an applicant has tried to avail himself of a remedy that the Court considers inappropriate, the time taken to do so will not interrupt the running of the six-month time limit, and this may lead to the application being rejected as out of time (see Rezgui v. France (dec.), no /99, ECHR 2000-XI, and Sheidl v. Ukraine (dec.), no. 3460/03, 25 March 2008). However, special considerations may apply in exceptional cases where an applicant first avails himself of a domestic remedy and only at a later stage becomes aware, or should have become aware, of circumstances which make that remedy ineffective. In such a situation, the six-month period may be calculated from the time when the applicant becomes aware, or should have become aware, of those circumstances (see Bulut and Yavuz v. Turkey (dec.), no /01, 28 May 2002). The Court also notes that it is not open to it to set aside the application of the six-month rule solely because a respondent Government have not made a preliminary objection based on that rule, since the said criterion, reflecting as it does the wish of the Contracting Parties to prevent past events being called into question after an indefinite lapse of time, serves the interests not only of respondent Governments but also of legal certainty as a value in itself. It marks out the temporal limits of the supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see Walker v. the United Kingdom (dec.), no /97, ECHR 2000-I). As regards the action under Article of CCvP, the Court has noted above that this remedy could not have resulted in an award of damages to the applicant. Moreover, it could not have had any prospect of success since the domestic courts had no jurisdiction to deal with those issues in that type of domestic proceedings. It follows that the remedy used by the applicant cannot be considered effective for the purposes of Article 35 1 of the Convention, and the applicant, as a lawyer, was, or at least should have been, aware of that when instituting the action. The Court further considers that as the applicant contested the possibility of lodging civil claim for damages under the domestic law, he should have submitted his complaints to the Court within the six-month period from the moment of the impugned measures. Given that those measures occurred in March 2002 and the application to the Court was submitted on 15 April 2004, these complaints fall outside the six-month period. The Court thus rejects this part of the application in accordance with Article 35 1 and 4 of the Convention. 3. The applicant complained he had no remedies to challenge the unlawful acts of the police officers in the course of search and seizure operations. He relied on Article 13 of the Convention which reads as follows:

10 10 ULYANOV v. UKRAINE DECISION 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, having declared the relevant issue under Article 8 of the Convention inadmissible, concludes that the applicant has no arguable claim for the purposes of Article 13 of the Convention (see Rodić and Others v. Bosnia and Herzegovina, no /05, 82, 27 May 2008). It follows that the applicant's complaint under Article 13 of the Convention must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 3 and 4 of the Convention. 4. The applicant complained that the manner in which the police officers had behaved in his office on 11 March 2002 constituted a violation of Article 3 of the Convention. He further complained under Articles 6 and 13 of the Convention that the domestic courts had not properly considered his requests for annulment of the court orders of 11 and 12 March 2002 (authorising the seizure and search operations). The applicant also complained under Article 6 1 of the Convention that he had been denied access to a court in respect of his complaint against the tax police officers. Having considered the applicant's submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible. Claudia Westerdiek Registrar Peer Lorenzen President