FIFTH SECTION      CASE OF BAGIYEVA v. UKRAINE (Application no. 41085/05)         JUDGMENT    STRASBOURG 28 April 2016 FINAL 28/07/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Bagiyeva v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President, Ganna Yudkivska, André Potocki, Faris Vehabović, Síofra O’Leary, Carlo Ranzoni, Mārtiņš Mits, judges,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 22 March 2016,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 41085/05) 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 Tetyana Grygorivna Bagiyeva (“the applicant”), on 4 November 2005.2. The applicant was represented by Mr V. Sizonenko, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Acting Agent, Ms O. Davydchuk.3. The applicant alleged under Articles 8 and 13 of the Convention that her flat had been searched in breach of her right to respect for her home, and that there had been no effective remedies in respect of that violation.4. On 28 March 2011 the application was communicated to the Government.THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1958. She divorced her husband, B., in 1992. At the time of the events, she was living with her daughter, who was a minor, in a flat in Kyiv.6. On 7 March 2005 police officers arrested B. for an administrative offence at Kyiv Pasazhyrskyy railway station. Following the arrest, the police officers found that a driving licence he had shown them did not bear all the requisite information and had a series number linked to another person in the police database.7. On 8 March 2005 criminal proceedings were instituted against B. for document forgery committed in conspiracy with others. On that day the police recorded telephone conversations between B. and the applicant which suggested that certain documents relating to his driving licence and his study in the driving school had been kept in her flat. The recorded conversations were later documented in a report on 31 October 2005.A. Search of the applicant’s flat8. On 10 March 2005 an investigator with the Pivdenno-Zakhidna railway police department, who was dealing with the criminal case against B., applied to the Shevchenkivskyy District Court in Kyiv for search warrants for two flats, including the one belonging to the applicant, where, according to the investigator, B. permanently resided.9. On 11 March 2005 the Shevchenkivskyy District Court of Kyiv issued the search warrants. Only the investigator was present at the hearing. With regard to the applicant’s flat, the court found that it was necessary to carry out a search of the flat where B. permanently resided and where the forged documents, as well as the means of and instruments for forging the documents, might be kept.10. On the same day the investigator decided to carry out the search of the applicant’s flat. Upon their arrival, the investigator and the other police officers present found that the flat was locked and that nobody responded when they rang the bell. According to the statements of the police officers, as submitted to the investigative authorities, they had contacted the applicant to inform her about the search. According to the applicant, on that day she and her daughter had left for their cottage outside the city; she had had her mobile phone with her and had not been contacted by the police.11. The police officers called a task force to open the door to the flat. Once the door had been opened, the investigator and three police officers carried out the search, with two attesting witnesses and a representative of the building maintenance organisation in attendance. In the course of the search the police officers seized items of property, which they listed in a report. The list included, among other things: floppy disks, compact discs, vehicle registration certificates, keys, a box containing cash, certificates issued in B.’s name, a painting and an icon.12. On 14 March 2005 the applicant returned home and found the door to her flat damaged and sealed. With the investigator’s permission, she entered the flat and found that it was in a state of disarray. She also found that some items of property not included in the list of seized items were missing: four mobile phones, top-up cards for mobile phones, jewels and a bottle of whisky.B. Domestic proceedings13. The applicant made a complaint to the law-enforcement authorities regarding the actions of the police officers carrying out the search. She claimed that requirements of domestic law had been breached in the course of the search and that some items of property had disappeared.1. Investigation into the alleged theft14. On 19 April 2005 the Kyiv transport prosecutor’s office commenced a criminal investigation with regard to the possible theft of the applicant’s property.15. On 5 July 2005 the applicant was granted victim status and her civil claim was admitted to the file. On the same day the investigation was suspended, as it was not possible to identify the possible perpetrators of the crime.16. On 1 October 2005 the Kyiv city prosecutor’s office reversed the decision of 5 July 2005 as regards the suspension of the proceedings, finding that the investigation had not been carried out comprehensively: the people participating in the search of the applicant’s flat had not been questioned properly, the mobile phones and the top-up cards had not been found, and the investigative measures implemented had not been properly documented.17. On 30 November and 26 December 2005 certain seized items, including the painting, the icon and the missing mobile phones, were returned to the applicant.18. On 28 December 2005 the transport prosecutor’s office of Kyiv refused to investigate the possible neglect of official duties by the police officers as regards the failure to fully document the items seized. It considered that the mobile phones had not been included in the list of seized items owing to a technical mistake. The phones had been given back to the applicant and, consequently, she had sustained no damage. It was concluded in the end that there had been no objective evidence to suggest that the police officers had neglected their duties.19. On 9 June 2006 the Kyiv city prosecutor’s office found that the investigation into the alleged theft had not been carried out thoroughly, and had been delayed. It requested the Kyiv city prosecutor’s office to organise a proper investigation of the case.20. On 30 June 2006 an investigator with the Kyiv transport prosecutor’s office terminated the investigation, stating that there had been no evidence to suggest that any item had been stolen from the applicant’s flat during the search.21. The applicant challenged that decision in court.22. On 7 August 2006 the Holosiyivskyy District Court of Kyiv dismissed the applicant’s complaint, considering that the investigator had taken the necessary measures and had lawfully closed the case.23. The applicant appealed.24. On 16 November 2006 the Kyiv City Court of Appeal quashed the first-instance court’s decision of 7 August 2006 and the investigator’s decision of 30 June 2006 as unsubstantiated, and remitted the case for further investigation.25. As of 22 July 2011 the investigation was ongoing. No further information was provided to the Court.2. Inquiry into the abuse of power or ultra vires actions by the police officers26. On 16 June 2005 the Kyiv transport prosecutor, having conducted a pre-investigation inquiry, refused to commence criminal proceedings in relation to the possible abuse of power or ultra vires actions by the police officers during the search of the applicant’s flat. In his decision, the prosecutor referred to the statement of a police officer that the applicant had been contacted on her mobile phone and informed that the search would be carried out, and the door to the flat had only been broken down after her refusal to appear. The prosecutor also stated that the search had been carried out in accordance with established procedure; it had been observed by two attesting witnesses and the representative of the building maintenance organisation, as required by the domestic law.27. On 21 June 2005 the applicant challenged the decision of 16 June 2005 in court.28. On 7 July 2005 the Holosiyivskyy District Court of Kyiv found that the decision of 16 June 2005 was well-founded. The court stated that the prosecutor had adopted the decision after interviewing the police officers, two attesting witnesses, and a representative of the building maintenance organisation who had been involved in the search, in addition to the applicant and her former husband. The court further stated that the prosecutor had examined the search warrant, search report and other relevant documents, and had come to the correct conclusions when refusing to open an investigation.29. The applicant appealed.30. On 8 September 2005 the Kyiv Court of Appeal upheld the decision of 7 July 2005, finding that the prosecutor had lawfully refused to open an investigation. The applicant’s contentions were dismissed as groundless.31. The applicant appealed on points of law.32. On 25 November 2005 the Supreme Court dismissed the applicant’s appeal, noting that the impugned court decisions were not open to review.II. RELEVANT DOMESTIC LAWA. Criminal Code of 5 April 2001 (as worded at the relevant time)33. Article 162 of the Code provided:“1. Unlawful entry into a dwelling or other property of a person, or the unlawful examination or search thereof, or unlawful eviction or any other actions violating the inviolability of a citizen’s home –shall be punishable by a fine of fifty to one hundred times the non-taxable minimum income, or up to two years’ correctional labour, or restriction of liberty for up to three years.2. The same acts, if committed by officials... –shall be punishable by imprisonment for two to five years.”34. Article 364 of the Code provided:“1. Abuse of power or office, that is, the intentional use by an official of his or her power or office contrary to official interests for financial gain or other personal benefit or benefit to a third party, if it has caused serious damage to State or public interests or to the lawful interests, rights and freedoms of natural or legal persons –shall be punishable by up to two years’ correctional labour or up to six months’ detention (арешт), or restriction of liberty for up to three years, with a prohibition for up to three years on the holding of certain posts or the performance of certain activities. ...2. The same acts, if they have caused grave consequences, ...3. Acts as described in paragraphs 1 or 2 of this Article, if committed by law-enforcement officers –shall be punishable by imprisonment of between five and twelve years, with a prohibition of up to three years on holding certain posts or performing certain activities, and confiscation of property.”35. Article 365 § 1 of the Code provided:“Exceeding the limits of power or office, that is, the intentional commission of acts by an official which go manifestly beyond the scope of the rights and powers vested in him or her and which cause serious damage to the State or public interest or to the lawful interests, rights and freedoms of natural or legal persons –shall be punishable by up to two years’ correctional labour or by restriction of liberty for up to five years, or by imprisonment for between two and five years, with a prohibition for up to three years on the holding of certain posts or the performance of certain activities.”B. Code of Criminal Procedure (“the CCP”) of 28 December 1960 (in force at the relevant time)36. Article 4 of the CCP provided:“The court, the prosecutor, the investigator or the body of inquiry must, to the extent that it is within their power to do so, institute criminal proceedings in every case where evidence of a crime has been identified, take all necessary measures provided by law to establish whether a crime has been committed, identify the perpetrators, and punish them.”37. Article 127 of the CCP provided, inter alia, that in the course of a search at least two attesting witnesses had to be present. The witnesses had to be unbiased. The attesting witnesses could not be chosen from the victims, their relatives, the relatives of the suspect or the accused, or the officers of the body of inquiry or the investigation.38. Article 177 of the CCP provided, inter alia, that a search could be carried out if there were sufficient grounds to believe that the means of committing a crime, items (including valuable items) which had been obtained in a criminal way, and items and documents important to the case were being kept on certain premises. A search of a person’s home and other possessions could only be conducted on the basis of a reasoned court decision, except in urgent cases. The court decision ordering a search was not open to appeal.39. Article 181 of the CCP provided:“The search and seizure shall be carried out in the presence of two attesting witnesses and the person occupying the searched premises and – in the event of the latter’s absence – a representative of the building maintenance organisation or the local council.A search and seizure on premises occupied by enterprises, institutions and organisations shall be carried out in the presence of their representatives. As far as possible, the person whose property is being searched, or an adult member of his/her family, and also the victim, if the latter’s appearance is necessary, should be present during the search. ...”40. Article 183 of the CCP provided:“...When conducting a search the investigator shall have the right to open locked premises and storages if the occupier refuses to open them. The investigator, however, shall avoid causing unnecessary damage to doors, locks and other property...”THE LAWI. ALLEGED VIOLATIONS OF ARTICLES 8 AND 13 OF THE CONVENTION41. The applicant complained that the search of her flat had constituted a violation of her right to respect for her home, and that the authorities had failed to examine and effectively investigate her complaints on that matter. She relied on Articles 8 and 13, which provide: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 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.”Article 13 (right to an effective remedy)“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.”A. Admissibility42. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.B. Merits1. The parties’ submissions43. The applicant maintained her complaints, insisting that certain seized items had not been returned by the police and that the domestic investigations into the incident had not been effective.44. The Government admitted that the search of the applicant’s flat had constituted an interference with her right to respect for her home as set out in Article 8 of the Convention. They submitted, however, that the interference had been in accordance with domestic procedure and had had a legal basis, it had pursued the legitimate aim of preventing crime, and had been necessary in the circumstances of the case. Referring to the information officially recorded in the report of 31 October 2005 which documented telephone conversations between B. and the applicant, the Government argued that the search had been a necessary measure, as the police had had information that certain documents important to the criminal proceedings against B. had been kept in the applicant’s flat. Furthermore, relying on the statements of the police officers, the Government submitted that the applicant had been informed of the search and she had therefore been given an opportunity to be present during the procedure.45. The Government further submitted that the question of the procedural obligation to investigate the applicant’s allegations of wrongful search fell under Articles 8 and 13 of the Convention. They maintained that the authorities had carried out an effective investigation into all the aspects of the incident. In particular, they had instituted criminal proceedings in relation to the alleged theft of the applicant’s property and had taken a number of investigative measures in that regard. However, as of 22 July 2011 the investigation was still ongoing. Furthermore, the authorities had carried out a pre-investigation inquiry in relation to the possible abuse of power or ultra vires actions by the police officers. Their decision of 16 June 2005, consequently refusing to open an investigation, had been upheld by the domestic courts. Lastly, as regards civil redress, the Government submitted that the applicant would be able to claim damages if the people responsible were identified and prosecuted in the course of the relevant criminal proceedings.2. The Court’s assessment46.

Article of the Convention at issue: Article 8
Outcome: violation