FIFTH SECTION      CASE OF ZOSYMOV v. UKRAINE (Application no. 4322/06)       JUDGMENT  STRASBOURG  7 July 2016  FINAL 07/10/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Zosymov v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President, Ganna Yudkivska, Khanlar Hajiyev, Erik Møse, André Potocki, Carlo Ranzoni, Mārtiņš Mits, judges,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 14 June 2016,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 4322/06) 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, Mr Igor Viktorovych Zosymov (“the applicant”), on 21 January 2006.2. The applicant was represented by Ms N.M. Perestyuk, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented, most recently, by their acting Agent, Mrs O. Davydchuk.3. The applicant alleged, in particular, that the police had unlawfully searched his office, car and garage; seized his belongings and used them as physical evidence in criminal proceedings to which he had not been party. He also complained that the proceedings had been inordinately lengthy and that there had been no effective remedies available to him for complaining about the above and recovering his seized property.4. On 2 January 2012 the application was communicated to the Government.THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. In 1996 the applicant and his wife started a family business which involved, among other things, the replication of digital data and the sale of blank data storage devices. They used a flat on P. Street in Kyiv owned by the applicant’s mother as their office, in which they had copying equipment set up.A. Criminal investigation concerning a purported breach of copyright law6. On 20 August 2002 several police officers from the Kyiv Economic Crime Unit (“KECU”) inspected the applicant’s office at P. Street in his and his wife’s presence.7. On the same date the KECU officers also inspected the applicant’s garage and his car.8. After the inspection the police seized seven computers, sixty-six optical disc recording devices, a printer, a modem, over three thousand optical discs with recordings, some thirty thousand blank optical discs and some seven thousand printed disc covers. The seizure was documented on three standardised forms (one for each site inspected), which included the following pre-filled printed text:Deed of inspection and seizure“Beginning of the inspection: _______ [time, date]End of the inspection: _________ [time, date]I (we), ______ of the KECU on the premises of ______ [site] ... inspected and seized from _________ [name, address, place of work of the person whose possessions were subject to seizure] the following ________ [list of seized items].The seized items will be stored with the KECU pending resolution of the matter on the merits.This Deed has been completed in duplicate and read out. ...”9. It appears from the forms that the inspection of the office started at 7.30 p.m. and ended at 7.30 a.m. the following morning, 21 August 2002. Other sites were inspected at the same time – the car from 7.30 p.m. until 1.34 a.m. and the garage between10.25 and 11.45 p.m.10. According to the applicant, for the whole night the police officers questioned him, his wife and the members of their extended family who were on the premises. The questions related to the applicant’s family business and the observance of copyright law in the business’s use of software and in its replicating activities.11. On 22 August 2002 a report was published on the Ministry of Interior’s website, which stated that the Kyiv Police had:“... 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 ...”12. The report also featured a photograph of the applicant’s wife without a caption and listed the seized items, declaring their estimated value as 117,000 Ukrainian hryvnias (UAH).13. On 15 November 2002 investigator O.K. from the Investigative Department of the Kyiv Police instituted criminal proceedings concerning “the suspected breach of copyright” under Article 176 of the Criminal Code of Ukraine, without naming any suspected offenders. In his decision, he referred to the search of the office of the applicant and his wife and the seizure of their belongings on 20 August 2002. He further noted that they had been found not to have a license agreement with the law firm S., the official representative of the Microsoft Corporation, whose software they had used in their business, thereby causing damage to the software copyright owner.14. On 20 November 2002 O.K. declared the property seized from the applicant and his wife as physical evidence to be stored by the police pending the investigation of the case.15. On 21 November 2002 the Shevchenkivsky District Court of Kyiv (hereinafter “the District Court”) issued search warrants in respect of the applicant’s and his wife’s flats, noting that they were suspected of breaching criminal legislation concerning copyright protection.16. On 23 November 2002 these flats were searched pursuant to the warrants. It appears from the case file that no items were seized.17. As follows from the applicant’s submissions, after these searches and several interviews, the proceedings stagnated, with the police never pressing any charges against the applicant or any other person.18. On numerous occasions the applicant asked the police and the prosecutor’s office to order the return of his seized property. On various dates (in particular 24 February 2003, 11 August 2003 and 13 May 2005) the respective authorities rejected his requests, notifying him that his seized property constituted physical evidence in a criminal case, that keeping it in the possession of the authorities was justified by the need to carry out expert assessments and that, more generally, in accordance with Article 81 of the Code of Criminal Procedure 1960 (“the CCP”), the fate of the items had to be determined upon the final resolution of the case.19. On 27 September 2004 the Kyiv prosecutor’s office rejected a request by the applicant to have the criminal case in which his possessions had been seized transferred to court with a view to having the proceedings closed as time-barred. They noted, in particular, that proceedings could only be terminated on such grounds in cases in which a particular person had been indicted.20. On 25 February 2005 the police rejected a request by the applicant to have the criminal proceedings discontinued for lack of corpus delicti, noting that discontinuing proceedings on such grounds also presupposed the identification of a particular defendant.21. On 4 April 2004 the police informed the applicant in response to his complaint about being denied any status in the criminal proceedings – which, in his view, concerned him as a de facto suspect – that there were no grounds for instituting a criminal case against him personally. There was insufficient evidence that he had unlawfully replicated copyrighted materials or distributed counterfeit products.22. In March 2006 the criminal proceedings were still pending. No investigative measures concerning the applicant had been ordered. His property remained in the control of the police as physical evidence in the case.23. In their subsequent submissions – the last correspondence from the applicant’s lawyer and the Government was received in March and June 2013 respectively – the parties did not provide any further information concerning the outcome or status of the aforementioned criminal proceedings and the fate of the seized items.B. The applicant’s complaints and court actions against the police1. Defamation proceedings24. On an unspecified date the applicant and his wife instituted defamation proceedings against the police authorities for publishing an inaccurate crime report on their website (see paragraph 11 above), seeking the retraction of the information contained therein.25. On 27 October 2003 the District Court allowed the claim.26. It follows from the case file that this judgment was not appealed against and became final.2. Criminal complaint27. On 22 August 2003 the prosecutor’s office rejected the applicant’s request for criminal proceedings to be instituted against three KECU officers who had taken part in the search of his office, car and garage and had seized his property. It was noted in the relevant decision, in particular, that the police officers had not “searched” but “inspected” the applicant’s office and other sites. The inspection had been lawful, as it had been carried out in the police officers’ competence to carry out investigative and operational activities for the purpose of crime detection within the meaning of the Law of Ukraine “On operational and investigative activities” and with the applicant’s and his wife’s consent.28. On 13 October and 4 December 2003 respectively the Pecherskyy District Court and Kyiv City Court of Appeal (“the Court of Appeal”) rejected appeals by the applicant against that decision.3. Civil proceedings with a view to recovering the seized property29. On an unspecified date the applicant instituted civil proceedings in the Shevchenkivskyy District Court in Kyiv to reclaim his computer equipment, optical discs and other property seized by the police.30. On 10 October 2003 the court suspended these proceedings pending resolution of the criminal case in which the property had been retained by the police (see paragraphs 13-23 above).4. Proceedings under Article 234 of the CCP31. In April 2003 the applicant lodged a complaint against the Investigative Department of the Kyiv Police with the District Court. Initially referring to Article 248 of the Code of Civil Procedure 1963 in force at the material time, he alleged, in particular, that the inspection of his office and search and seizure of his property in August 2002, as well as the institution of criminal proceedings on 15 November 2002 had been unlawful.32. In court the applicant reformulated his claims. Referring to Article 234 of the CCP (see paragraph 46 below) he contended that there had been no lawful grounds for instituting the criminal proceedings concerning the suspected breach of copyright. He requested that the investigator’s decision of 15 November 2002 (see paragraph 13 above) be set aside. In this respect the applicant submitted, in particular, that on 20 and 21 August 2002 KECU officers had conducted an arbitrary search and seizure of his property without a court warrant or any other lawful grounds for taking such actions. The applicant argued that there was no reason to suspect that a crime had been committed justifying the search and seizure of his belongings; that, in breach of the applicable law, the measures had been taken at night-time; that the same people had been appointed as lay witnesses for all three sites, which had been inspected all at the same time; and that following the institution of the criminal proceedings he had not been summoned to participate in any investigative activities. The proceedings at issue had been instituted in bad faith, to prevent him from recovering his seized property and to cover up the unlawful conduct of the KECU.33. On 26 June 2003 the District Court found that Article 234 of the CCP (not Article 248 of the Code of Civil Procedure 1963) was the appropriate provision for examining the applicant’s allegations. It rejected them, finding that the applicant lacked standing to bring the proceedings. In particular, the disputed criminal case had been instituted “into the matter” rather than “against the applicant” (see paragraph 46 below quoting Article 98 of the Code of Criminal Procedure), who had neither been a formal suspect nor a defendant in the proceedings at issue. He could not therefore claim that his rights had been breached by the institution of the proceedings. As regards his complaints concerning the allegedly unlawful actions of the police, in accordance with Article 234 of the Code of Criminal Procedure, these complaints could be brought only within the framework of the above-mentioned criminal case and fell to be examined by the court which would try that case, during either the preliminary hearing or trial.34. The applicant appealed, stating in particular that he had been a de facto suspect in the proceedings at issue. As he had been denied formal status as a suspect, he could not defend himself properly. In addition, as the proceedings had been artificially protracted, he had been deprived of the opportunity to reclaim his seized property pending resolution of the case.35. On 17 September 2003 the Court of Appeal quashed the District Court’s decision and decided to discontinue the proceedings. Like the lower court, it considered that the applicant had no standing to bring the proceedings at issue and, more generally, that the actions of the police authority complained of could only be challenged before the court examining the criminal case, after the relevant investigation had been completed and the case transferred to the court for examination. In these circumstances, rather than rejecting the applicant’s complaints on the merits, the proceedings had to be discontinued.36. The applicant appealed on points of law.37. On 13 July 2004 the Supreme Court of Ukraine quashed the previous decisions and remitted the case to the lower courts for fresh consideration. It noted, in particular, that on 30 January 2003 the Constitutional Court of Ukraine had found that the provisions of Article 234 of the CCP, which had made it impossible to appeal separately against decisions of investigative authorities concerning the institution of criminal proceedings, were unconstitutional (see paragraph 47 below). The foregoing ruling also meant that courts should likewise admit for consideration complaints about other procedural actions, decisions or inaction on the part of investigative authorities, which could result in irreparable or grave damage to an individual’s constitutional rights if their judicial review were to be delayed. The Supreme Court further noted that there was sufficient evidence to suggest that the applicant had been substantially affected by the criminal proceedings at issue – in particular, with regard to the search of his premises and the seizure and retention of his belongings. It stated 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 actions on their part.38. On 14 October 2004 the District Court allowed the applicant’s complaint and revoked the decision of 15 November 2002. Regard being had to the grounds for taking that decision, the proceedings should have been instituted against the applicant, who had been a de facto suspect in relation to breach of copyright. Institution of the proceedings “into the matter” without indicating a specific defendant had been artificial and had restricted the applicant’s procedural rights. The police officers’ actions which had led to the institution of the proceedings had been tainted by procedural breaches, regard being had, in particular, to the unjustified inspection of the premises at night-time in the absence of the flat owner (the applicant’s mother ), as well as various other procedural violations.39. On 3 November 2004 the Kyiv prosecutor’s office appealed against that decision.40. On 24 December 2004 the Court of Appeal quashed the District Court’s decision and remitted the criminal case concerning the suspected breach of copyright to it for further investigation. By assessing the lawfulness of the investigative actions, the District Court had in fact touched upon the admissibility of evidence, a matter which 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 had not caused irreparable damage to the applicant’s constitutional rights such as would necessitate the setting aside 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 prosecution authorities.41. The applicant appealed on points of law, alleging in particular that the Court of Appeal had breached procedural rules in admitting the appeal of the prosecutor’s office.42. On 25 July 2005 Justice V.P. of the Supreme Court refused to consider the applicant’s request for leave to appeal on points of law, stating that the Supreme Court lacked jurisdiction over the decisions taken by the Court of Appeal in the relevant matters, unless they concerned the termination of proceedings.II. RELEVANT DOMESTIC LAWA. Constitution of Ukraine 199643. Article 30 provides: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.”B. Code of Civil Procedure 196344. The relevant provisions of the Code of Civil Procedure 1963 in force at the material time have been summarised in the Court’s decision in the case of Ulyanov v. Ukraine ((dec.), no. 16472/04, 5 October 2010).C. Code of Criminal Procedure 1960 (CCP)45. The relevant provisions of Articles 110, 177 and 178 of the CCP have been summarised in the Court’s decision in the case of Ulyanov v. Ukraine ((dec.), cited above).46. Other relevant provisions of the CCP read as follows:Article 81. Resolution of issues concerning physical evidence“Issues concerning physical evidence shall be decided in the judgment, decision or ruling of the court or ruling 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 institution of the criminal case the person who committed the offence has been identified, the proceedings should be instituted against that person ...”Article 180. Time for carrying out of search and seizure“Searches and seizures, save for in urgent situations, shall be carried out during daytime.”Article 234. Complaining about the actions of an investigator“The actions of an investigator can be complained about to the prosecutor ...The actions of an investigator can be complained about to the courts.Complaints about the actions of an investigator shall be considered by the court of first instance during the preliminary consideration of the case or during trial, unless otherwise envisaged by this Code.”D. Ruling of the Constitutional Court of Ukraine of 30 January 200347. The relevant 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, [and] postponement of their examination by the court until the preliminary 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 holds:...2. To declare unconstitutional the provisions of ... Article 234 ... 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 ... concerning the reasons and grounds for and procedure concerning the institution of a criminal case against a particular person ...”THE LAWI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION48. The applicant complained that his office, car and garage had been unlawfully and arbitrarily searched by the KECU. He relied on Article 8 of the Convention, the relevant parts of which read as follows:“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 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. Admissibility49. The Government argued that the six-month period for lodging the present complaint had not been observed. In their view, this period had started to run from the date of the alleged interference (20 August 2002), as at the material time there had been no effective domestic remedies for the applicant’s complaint. Among other things, there had been no effective mechanism for the applicant in his situation to claim monetary compensation for the police’s actions.50. The applicant agreed that all the domestic remedies he had tried to avail himself of had proved to be ineffective in his case. However, in his view, it had not been obvious from the start that his efforts would be doomed to fail. He should not therefore be reproached for attempting to exhaust them. As regards monetary compensation, this matter had been of secondary importance to him as his primary goal had been to obtain recognition that the police had acted in contravention of the law and to clear himself of any criminal accusations.51. 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 of domestic remedies. If no remedies are available or if those available are judged to be ineffective, the six-month period in principle runs from the date of the act complained of (see, among other authorities, Vladimir Polishchuk and Svetlana Polishchuk v. Ukraine, no. 12451/04, § 38, 30 September 2010). 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 lodged out of time (see, among other authorities, Ulyanov (dec.), cited above). However, where an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render it ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant first became or ought to have become aware of those circumstances (see, in particular, Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 157, ECHR 2009; Volokhy v. Ukraine, no. 23543/02, § 37, 2 November 2006; and Ratushna v. Ukraine, no. 17318/06, § 62, 2 December 2010).52. Turning to the facts of the present case, the Court observes that the application was lodged in 2006, whereas the alleged violation of the applicant’s rights under Article 8 of the Convention took place in 2002.53. The applicant took a number of steps attempting to obtain redress at the domestic level. For instance, his allegations, which served as the basis for his complaint under Article 8 of the Convention in the proceedings before it, were accepted for examination by the domestic courts on the basis of Article 234 of the then current legislation, the Code of Criminal Procedure 1960. Having regard to the conflicting views expressed by the domestic courts in examining that complaint, and especially, to the positions taken by the Supreme Court in its ruling of 13 July 2004 and the District Court in its decision of 14 October 2004 (see paragraphs 37 and 38 above), the Court cannot conclude that the applicant had attempted to use a remedy which was obviously ineffective (compare and contrast with Ulyanov (dec.), cited above).54. The Court also notes that the above-mentioned proceedings could potentially lead to the revocation of the decision to institute criminal proceedings, in which the applicant considered himself to be a de facto suspect, and acknowledgment that his rights had been breached, which is an essential element of redress within the meaning of Article 35 of the Convention (see, mutatis mutandis, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, §§ 83 and 88, ECHR 2012). In view of this, and regard being had to the actual outcome of those proceedings, the Court does not consider it necessary to address the Government’s argument concerning the alleged inability for the applicant to obtain monetary compensation in these or any other domestic proceedings.55. Consequently, the Court finds that the applicant can be regarded as having legitimately raised the matter under Article 8 at the domestic level and that those procedural steps should not be held against him when deciding the question of the admissibility of the relevant Convention complaint. The present application was lodged on 21 January 2006, that is, within six months of the termination of the relevant domestic proceedings on 25 July 2006 (see paragraph 42 above). The Court therefore rejects the Government’s objection concerning non-compliance with the six-month rule.56. The Court next notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further considers that it is not inadmissible on any other grounds. It must therefore be declared admissible.B. Merits57. In his application to the Court, the applicant alleged that the police had searched his office, car and garage without any legal basis for doing so.58. The Government did not provide any observations on the merits of the present complaint.59. The Court notes that the relevant deeds documenting the police’s presence in the applicant’s office, car and garage refer to this presence as “inspection” rather than “search” (see paragraph 8 above). It considers that whatever was the domestic qualification of the disputed action, for the purposes of the Convention it amounted to “interference” with the applicant’s right to respect for his home (see, in particular, Niemietz v. Germany, 16 December 1992, § 30, Series A no. 251‑B; and Panteleyenko v. Ukraine, no. 11901/02, § 47, 29 June 2006 as regards the applicability of Article 8 to searches of non-residential premises and, mutatis mutandis, Belousov v. Ukraine, no. 4494/07, §§ 102 and 105-107, 7 November 2013 classifying an “inspection” under domestic law as interference within the meaning of Article 8).60. The next question is whether the interference complained of was justified under Article 8 § 2. In this connection, the Court reiterates that in order to comply with Article 8 § 2, the interference must, among other things, be “in accordance with the law”; that is, it should have some basis in domestic law and be compatible with the rule of law (see, among other authorities, Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 95, ECHR 2008, and Belousov, cited above, § 104). In matters affecting fundamental rights, it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise (see, among other authorities, Gillan and Quinton v. the United Kingdom, no. 4158/05, § 77, ECHR 2010 (extracts), with further references). The existence of specific procedural safeguards is material in this context. What is required by way of safeguard will depend, to some extent at least, on the nature and extent of the interference in question (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 46, ECHR 2001-IX). In various contexts of Article 8 of the Convention, the Court has emphasised that measures affecting human rights must be subject to some form of adversarial proceedings before an independent body competent to review in a timely fashion the reasons for the decision and the relevant evidence (see, as a recent authority, Kotiy v. Ukraine, no. 28718/09, § 68, 5 March 2015).61. Turning to the facts of the present case, the Court notes that it follows from the case file that the police visit complained of had not been subject to prior authorisation by any independent judicial authority. The only relevant document obtained by the applicant from the police in justification of the visit – the “deed of inspection and seizure” — did not refer to any legal provisions serving as a basis for the visit and determining the scope of the powers of the officers involved (see paragraph 8 above). The applicant’s efforts to obtain subsequent judicial review of the lawfulness of the measure were unsuccessful. In particular, as follows from the judgment of 24 December 2004 taken by the Court of Appeal, the relevant complaint could only be brought within the framework of the criminal trial of the case initiated by the police following the disputed visit, in the event that the investigative authority ever brought the case to that stage. In the meantime, by the time the applicant lodged the present application, the relevant criminal proceedings had remained stagnant for several years, and the applicant had not been able to obtain any procedural status in these proceedings, in spite of his numerous efforts. The Court notes that in its recent judgment in the case of Kotiy (cited above, §§ 69-70) it has already found that a situation where the only possibility for the applicant to challenge the investigator’s conduct had been under Article 234 of the CCP (after the criminal case against him had been committed for trial) was incompatible with Article 8.62. The Court considers its findings in Kotiy equally pertinent in the present case. In particular, it concludes that domestic law did not provide requisite guarantees against arbitrariness in respect of the police’s actions complained of and did not meet the requirement of quality of law for the purposes of the Convention. Accordingly, the interference in question was not “in accordance with the law” as required by Article 8 § 2 of the Convention.63.

Article of the Convention at issue: Article 1
Outcome: violation