ITEMID: 001-92105
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF GRIGORYEVSKIKH v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 6-1 and 6-3-c;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 5. The applicant was born in 1950 and lives in Gribanovskiy, in the Voronezh Region.
6. The applicant is suffering from partial deafness (also known as sensor neural hearing loss).
7. On 17 January 2001 the applicant was arrested on suspicion of several counts of robbery, theft and unlawful possession of arms and taken to a police station for questioning. Following the interrogation, the applicant was remanded in custody pending trial in detention facility IZ-36/2 in Borisoglebsk, Voronezh Region.
8. Upon the applicant’s arrest he retained a lawyer, Mr B. In March 2001 the applicant asked for Mr B. to be replaced by Mr S. Later the applicant again asked the court for permission to change his lawyer on two occasions, alleging ineffectiveness. It appears that during the trial hearing he was represented by Ms N.
9. The trial was held on 12 November 2001. The Voronezh Regional Court convicted the applicant, along with nine other co-accused, of theft, aggravated robbery, hijacking, causing deliberate damage to property and possession of firearms, and sentenced him to ten years’ imprisonment with forfeiture of estate. The applicant appealed on the point of facts and law, contesting his involvement in several episodes and alleging that the sentence was too severe.
10. According to the applicant, on 26 August 2002 he requested to be present in the courtroom in person for health reasons (partial deafness and weak eyesight) but his request was never examined by the court.
11. According to the Government, the courts did not receive such a request.
12. It appears that the applicant was not informed about the date and time of the appeal hearing in due time but learned about it on the day of the appeal hearing. The authorities submitted a certificate from the IZ-77/3 detention centre in Moscow, where the applicant was placed for the duration of the appeal proceedings, informing the Court that it was impossible to submit a copy of the summons to the appeal hearing due to the absence of the applicant’s case file.
13. On 13 September 2002 the Supreme Court of Russia examined the applicant’s appeal, modified the qualification of his crimes and reduced the sentence to nine years and six months. The appeal hearing was held by video link. The applicant was brought to IZ-77/3 detention centre, which was equipped with the necessary facilities to broadcast the hearing. He was not represented by a lawyer. The prosecutor was present in person in the court room.
14. According to the applicant, the quality of the video and audio transmission was very low. The applicant, who was suffering from partial deafness, could not follow the appeal hearing properly and when he asked the warders to increase the volume his requests were allegedly refused in a rude manner. He further alleged that he had twice been interrupted by the judge when trying to defend himself and was not able to proceed with the defence due to his confusion and the negative psychological effect caused by the judge’s attitude and the transmission by video link. He further alleged that the overall length of the hearing amounted to less than ten minutes.
15. According to the Government, the applicant stated his case at the appeal hearing. He did not mention his illness during the appeal examination. The Supreme Court examined his arguments concerning the excessive severity of punishment. The court took into account the applicant’s family situation, his readiness to cooperate with the authorities and the factors which had induced him to commit the crime.
16. On 19 July 2005 the Rossoshanskiy District Court of the Voronezh Region brought the applicant’s sentence into compliance with the amendments introduced into the Russian Criminal Code in December 2003 and reduced the applicant’s sentence to eight years and six months’ imprisonment.
17. On 24 August 2005 the Supreme Court of Russia refused to review the judgment of 12 November 2001 and the appeal decision of 13 September 2002 by way of supervisory review, having found no violations.
18. The applicant was held in the detention facility IZ-36/2 in Borisoglebsk from 22 January to 8 March 2001 and from 27 August 2001 to 12 July 2002. The applicant does not complain about the conditions of his detention in other detention facilities where he was held from 8 March to 27 August 2001.
19. The Government submitted that the applicant was held in cells nos. 9 and 11 during the above-mentioned period.
20. According to a certificate of 6 December 2007 issued by the facility administration, cell no. 9 measured 9.63 sq. m and cell no. 11 measured 14.58 sq. m Another certificate of the same date indicated that two inmates were held in cell no. 9 and three inmates were held in cell no. 11 at the relevant period. The personal space afforded to the applicant was consequently over 4 sq. m in each cell. The cell was equipped with heating, ventilation, a window that could be opened, a drinking water container and a lavatory. The windows were covered by metal security shields which were removed in 2003. The applicant had an individual sleeping place and bedding. He received food three times a day in accordance with standard norms. The applicant was given cutlery and personal hygiene items. He was able to shower once a week and exercise outside for one hour a day.
21. The applicant contested these statements on account of personal space and sanitary conditions. He claimed that the cells were small, dirty and damp. The metal security shields covering the windows blocked access to natural light and fresh air, especially bearing in mind that the cells were located in a semi-basement. The artificial light was never switched off. Drinking water was of poor quality and was supplied in rusty containers. Due to overcrowding in the cells the applicant did not have an individual bed. The lavatory in the corner of the cell had no flush system and was not separated from the living area; the applicant had to use the toilet in front of his cellmates and the wardens who observed them through a peephole in the door. The detainees were given ten to fifteen minutes to take a shower. Two to five detainees had to share one shower and had to wash themselves and their clothes during this short time.
22. According to the certificates of 6 December 2007 issued by the facility director and the warders, the applicant was held in cells nos. 3, 7, 13, 14 and 23 during the above-mentioned period. The cells measured 11.8, 16.4, 11.8, 17.7, and 12.6 sq. m and housed two, four, two, four and three inmates respectively. The Government submitted consequently that the applicant was afforded no less than 4 sq. m of personal space in each cell.
23. As to the sanitary conditions, the Government submitted the same information as regards the period from 22 January to 8 March 2001 (see paragraph 20 above).
24. In support of their allegations the Government provided several certificates issued by the chief of IZ-36/2 on 6 December 2007, statements by the warders (not dated), a copy of the applicant’s prison card stating that the applicant had been provided with bed sheets, cutlery and clothes, as well as a number of certificates concerning the food ration during the relevant period of time and disinfection activities conducted in the detention facility in 2002-2003.
25. The applicant contested these statements. He claimed, in particular, that he had been held in cells 7, 10, 12 and 13; that the cells were small, dirty and damp. The metal security shields covering the windows blocked access to natural light and fresh air, especially bearing in mind that the cells were located in a semi-basement. The artificial light was never switched off. The cells were dimly lit by a 75-watt bulb, fixed in the ceiling and covered with metal mesh. Drinking water was of poor quality and was supplied in rusty containers. According to the applicant inmates were allowed two to four square metres per person in each cell, and he did not have an individual bed. The lavatory in the corner of the cells had no flush system and was not separated from the living area; it was allegedly located about one metre from the dining table; the applicant had to use the toilet in front of his cellmates and the wardens who observed them through a peephole in the door. The detainees were given ten to fifteen minutes to take a shower. Two to five detainees had to share one shower and had to wash themselves and their clothes during this short time. The applicant also complained about the appalling quality of nutrition, the large numbers of insects and rats, the lack of ventilation, the cold in winter (down to -10ºC in the corner cells) and the inadequate supplies of detergent. In detention the applicant contracted shingles and scabies.
26. The applicant supported his allegations by statements from his four cellmates, Mr G., Mr K., Mr F. and Mr Sh. who were held in the same cells as the applicant during 2001-2002. Additional submissions supporting the applicant’s description of IZ-63/2 in respect of overcrowding and poor sanitary conditions were lodged by Mr Ka., who had been detained in cells nos. 7 and 9 in 2000, Mr. Ki. who had been held in cells nos. 10 and 13 in 2001, Mr. KH. who had been held in cells nos. 8, 12, 21, 13 and 5 in 20022003 and Mr. G. who presented a general description of the detention building which had allegedly been built in the eighteenth century and not reconstructed since then. Although not all of the witnesses had been detained during exactly the same period of time as the applicant, their submissions relate to the same years and the same cells (nos. 7, 10, 12 and 13) and support the applicant’s allegations.
27. The Government contested the statements of Mr G., Mr K., Mr F. and Mr Sh. as factually untrue, claiming that these statements were not supported by any evidence and reiterating their description of the conditions of detention. They did not dispute that the persons who had submitted their statements had been held in the same detention facility together with the applicant.
28. On 23 January 2001 upon the applicant’s arrival in the detention facility the applicant was examined by doctors. Following this examination, he was diagnosed with chronic otitis of the middle ear and given the necessary treatment in the detention facility.
29. On 27 August 2001 the applicant asked for medical help in the detention facility due to the same problem with his ears. The applicant was examined by a prison doctor and transported to the Borisoglebsk Central Hospital to consult an otolaryngologist where he was diagnosed with bilateral mesotimpanite, a type of chronic ear disease which causes partial hearing loss and periodic pus discharge from the ear. Anti-inflammatory treatment was prescribed to the applicant.
30. The applicant again complained about his ear problem to the facility administration on 16 September, 9 November, 17 December 2001 and 21 March 2002. It appears that in all cases the applicant was provided with some form of medical treatment.
31. While in detention, the applicant contracted scabies and shingles. In this respect he received the necessary medication from the facility’s doctor.
32. After his arrival in the correctional colony IK-8 on 7 December 2002 the applicant received treatment for otitis. On 7 February 2003 at his request he was transported to a regional hospital of Voronezh where he stayed until 15 February 2003 and received anti-inflammatory treatment for his ears. Upon the medical examination conducted in the hospital the doctors diagnosed the applicant with bilateral chronic neural hearing loss.
33. On 20 February 2003 a medical certificate was issued by the colony administration indicating that the applicant was suffering from hearing impairment in both ears (двусторонняя хроническая нейросенсорная тугоухость).
34. The applicant submits that on the day of his arrest he had a construction business and was the owner of a house and three imported cars of good quality.
35. Since the original judgment of 12 November 2001 provided for forfeiture of property, the applicant’s property was apparently confiscated when the judgment became final. Later, following the changes in the Russian criminal law introduced in December 2003, the part of the judgment concerning the forfeiture of property was quashed in the proceedings for bringing the sentence in compliance with these changes (see paragraph 16 above). In any event, it appears that upon the applicant’s release from prison his property was not available to him.
36. No civil claim was apparently lodged with the domestic authorities for compensation or restitution of property.
37. On an unspecified date in February 2001 the applicant’s mother died. According to the applicant, he asked the prison authorities to transport him to the funeral venue, which was just ten kilometres away from the prison. His request to attend the ceremony was allegedly refused. The applicant did not submit any decisions or further details in this respect.
38. Section 22 of the Detention of Suspects Act (Federal Law no. 103FZ of 15 July 1995) provides that detainees should be given free food sufficient to maintain them in good health according to standards established by the Government of the Russian Federation. Section 23 provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell.
39. The Code of Criminal Procedure of the Russian Federation (in force from 1 July 2002) provides:
“1. Participation of legal counsel in the criminal proceedings is mandatory if:
1) the suspect or the accused has not waived legal representation in accordance with Article 52 of this Code;
2) the suspect or the accused is a minor;
3) the suspect or the accused cannot exercise his right of defence by himself owing to a physical or mental handicap;
3.1) the court proceedings are to be conducted [in the absence of the accused] in accordance with Article 247 § 5 of this Code;
4) the suspect or the accused does not speak the language in which the proceedings are conducted;
5) the suspect or the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty;
6) the criminal case falls to be examined by a jury trial;
7) the accused has filed a request for the proceedings to be conducted [without a hearing] under Chapter 40 of this Code;
2. ...
3. In the circumstances provided for by paragraph 1 above, unless counsel is retained by the suspect or the accused, or his lawful representative, or other persons on request, or with consent, of the suspect or the accused, it is incumbent on the investigator, prosecutor or the court to ensure participation of legal counsel in the proceedings.”
“1. The suspect or the accused may refuse legal assistance at any stage of criminal proceedings. Such a waiver may only be accepted if made on the own initiative of the suspect or the accused. The waiver must be filed in writing and must be recorded in the official minutes of the relevant procedural act.
...”
40. Article 373 of the Code provides that the appeal instance examines appeals with a view to verifying the lawfulness, validity and fairness of judgments. Under Article 377 §§ 4 and 5 of the Code, the appeal instance may directly examine evidence, including additional material submitted by parties.
41. Article 376 of the Code provides that upon receipt of the criminal case and the statements of appeal, the judge fixes the date, time and place for a hearing. The parties shall be notified of the date, time and place of the hearing no later than fourteen days before the scheduled hearing. The court determines whether the remanded convict should be summoned to the hearing. If the remanded convict has expressed the wish to be present at the examination of his appeal, he has the right to participate in person or to state his case via video link. The manner of his participation in the hearing is to be determined by the court
42. Examining the compatibility of Article 51 of the Code of Criminal Procedure with the Constitution, the Constitutional Court ruled as follows (decision no. 497-O of 18 December 2003):
“Article 51 § 1 of the Code of Criminal Procedure, which describes the circumstances in which the participation of defence counsel is mandatory, does not contain any indication that its requirements are not applicable in appeal proceedings or that the convict’s right to legal assistance in such proceedings may be restricted.”
43. That position was subsequently confirmed and developed in seven decisions delivered by the Constitutional Court on 8 February 2007. It found that free legal assistance for the purpose of appellate proceedings should be provided on the same conditions as during the earlier stages in the proceedings and is mandatory in situations listed in Article 51. It further underlined the obligation of courts to secure participation of defence counsel in appeal proceedings.
44. In a number of cases (decisions of 13 October 2004 and 26 January, 6 April, 15 June and 21 December 2005) the Presidium of the Supreme Court of the Russian Federation quashed judgments of appeal courts and remitted cases for fresh consideration on the ground that the courts had failed to secure the presence of defence counsel in the appeal proceedings, although it was obligatory for the accused to be legally represented.
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-102023
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF RATUSHNA v. UKRAINE
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8;Violation of Art. 13;Remainder inadmissible
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
TEXT: 5. 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.
6. 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.].”
7. 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.”
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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).
18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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.
26. On 22 November 2007 and 18 June 2008 respectively, the Court of Appeal and the Supreme Court upheld the first-instance court's decision.
27. 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).
28. On 10 December 2002 the court decided that the claim could not be examined under the civil procedure.
29. 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.
30. On 20 October 2003 the Tulchyn Court suspended the proceedings at the applicant's request pending the outcome of the criminal investigations.
31. On an unspecified date the proceedings were resumed and the case was transferred back to the Trostyanets Court.
32. On 19 June 2008 the applicant increased the amount of her claim.
33. 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.
34. The applicant appealed.
35. 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.
36. 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.
37. 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”.
38. The case remains pending before the Trostyanets Court.
39. 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.
40. 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.
41. 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.
42. 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.
43. 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”.
44. 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).
45. 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)”.
VIOLATED_ARTICLES: 13
NON_VIOLATED_ARTICLES: 8