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FIFTH
SECTION
CASE OF VLADIMIR POLISHCHUK AND SVETLANA POLISHCHUK v. UKRAINE
(Application
no. 12451/04)
JUDGMENT
STRASBOURG
30
September 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Vladimir Polishchuk
and Svetlana Polishchuk v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Renate
Jaeger,
President,
Karel
Jungwiert,
Rait
Maruste,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
Ganna
Yudkivska,
judges,
and Stephen
Phillips, Deputy
Section Registrar,
Having
deliberated in private on 7 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 12451/04) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Ukrainian nationals, Mr Vladimir Polishchuk
(“the first applicant”) and Mrs Svetlana Polishchuk (“the
second applicant”), on 20 March 2004.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaitsev.
- On
13 March 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants are spouses. They were born in 1966 and live in Tokmak.
- According
to the applicants, in the period between January 2000 and August 2001
the first applicant lived and worked outside Tokmak.
- On
21 January 2001 an unknown person broke six windows in a building
near the applicants’ flat.
- On
30 January 2001 the Tokmak Town Police Office (“the Police
Office”) instituted a criminal investigation into that event.
- On
20 March 2001 the Police Office, suspecting that the first applicant
might have been involved in that event, ordered a search of his
residence. The decision to carry out the search was based on the
reason that evidence related to the event could be found in the first
applicant’s home. On the same day the search order was approved
by the local prosecutor.
- On
21 March 2001, when the applicants’ son was celebrating his
birthday with a number of his friends, the police officers entered
the applicants’ flat to carry out the search. The second
applicant, who was in the early stage of pregnancy, objected to the
search, stating that the search order contained no reasonable
explanation for her or her husband’s possible involvement in
the crime or for the need to search the flat. In response, the police
officers allegedly threatened her and began the search operation in
the presence of the guests. The first applicant was absent.
- In
the course of the search nothing was identified or seized for the
purpose of the investigation.
- On
unspecified date the applicants complained to the Zaporizhzhya Region
Prosecutor’s Office (“the Regional Prosecutor’s
Office”) alleging that the search had been unlawful.
- On 12 October 2001 the Regional Prosecutor’s
Office informed the applicants that following an inquiry it had been
established that the search had been carried out without a valid
reason, in breach of Article 177 of the Code of Criminal Procedure.
- On 13 November 2001 the Regional Prosecutor’s
Office informed the applicants that the police officers who had
carried out the search had been disciplined.
- On
19 August 2002 the applicants instituted proceedings in the Tokmak
District Court against the Police Office, the Regional Prosecutor’s
Office, and the Zaporizhzhya Region State Treasury Department,
seeking to have the search operation declared groundless and
unlawful. The second applicant additionally claimed compensation for
non-pecuniary damage caused by the unlawful act. She relied on
Articles 440-1 and 443 of the Civil Code and on the Act “On the
procedure for compensation for damage caused to citizens by unlawful
acts of bodies of inquiry, pre-trial investigation authorities,
prosecutor’s offices and courts” (“the Compensation
Act”).
- On
22 May 2003 the Tokmak District Court considered the applicants’
claims. As to the first applicant, the court found that the search
had been carried out two months after the crime and there had not
been sufficient grounds to believe that evidence could be found in
the applicants’ home. The court therefore allowed his claim and
declared that the search had been groundless and unlawful. As to the
second applicant, the court examined the invoked provisions of the
Civil Code and the Compensation Act and concluded that damage caused
by the procedural acts of bodies of inquiry, investigative
authorities, prosecutor’s offices and courts could be
compensated only in cases provided for by the Compensation Act. It
further stated that the search had been carried out in connection
with the suspicion against the first applicant only; the second
applicant was not entitled to claim damages for procedural acts which
had been carried out in respect of another person. For those reasons
it rejected the second applicant’s claim.
- On
26 August 2003 the applicants appealed against the judgment of 22 May
2003, stating, inter alia, that the first applicant had not
suffered any damage on account of the unlawful search, and that it
had been the second applicant who had incurred damage, as she had
been present in the flat at the time.
- On
16 December 2003 the Zaporizhzhya Region Court of Appeal endorsed the
rejection of the claim of the second applicant, reconfirming that it
was only the Compensation Act that had to be applied and that under
that provision the second applicant could not claim any damages,
since the search had been carried out only in connection with the
first applicant, who had been a suspect in the criminal proceedings.
The court further quashed the judgment of 22 May 2003 as regards the
claim of the first applicant and dismissed it, stating that such a
claim had to be considered in the course of relevant criminal
proceedings.
- On
8 January 2004 the applicants appealed in cassation against the
decision of 16 December 2003, reiterating in particular that it had
been the second applicant, but not the first, who had suffered damage
on account of the unlawful acts. They asked the Supreme Court to
adopt a new judgment satisfying the claim of the second applicant.
- On
31 January 2006 the Supreme Court rejected the applicants’
cassation appeal as unsubstantiated.
II. RELEVANT DOMESTIC LAW
A. Code of Criminal Procedure of 28 December 1960 (as
worded at the material time)
- The
relevant extracts of the Code provide as follows:
Article 110: Challenging acts and decisions of bodies
of inquiry
“Acts and decisions of a body of inquiry can be
challenged before the prosecutor, while their decisions on
termination of criminal proceedings can also be challenged before the
courts ...”
Article 177: Grounds for a search operation
“A search shall be carried out if there are
sufficient grounds to believe that the means of committing an offence
... and other items and documents important for the case are kept on
certain premises. ...”
Article 234: Challenging investigators’ acts
“Investigators’ acts can be challenged
before a prosecutor ...”
B. Code of Civil Procedure of 18 March 2004
- In
accordance with Article 355 of the Code, an application for review of
the civil case may be submitted on the ground that an international
judicial authority, whose jurisdiction was recognised by Ukraine,
found that Ukraine violated its international obligations in the
course of consideration of the civil case by the courts.
C. Civil Code of 18 July 1963 (in force at the material
time)
- The
relevant extracts of the Code provide as follows:
Article 440-1: Compensation for non-pecuniary damage
“Non-pecuniary damage caused to a citizen or an
organisation ... shall be compensated by the person who has caused
that damage unless the latter proves not to have been guilty. ...”
Article 443: Responsibility for damage caused by the
unlawful acts of bodies of inquiry, pre-trial investigation
authorities, prosecutor’s offices and courts
“Damage caused to a citizen by unlawful
conviction, unlawful bringing to criminal responsibility, unlawful
pre-trial detention in the course of criminal proceedings, unlawful
imposition of such administrative penalties as arrest or correctional
labour shall be compensated for by the State in full regardless of
the guilt of the officials of the bodies of inquiry, pre-trial
investigation authorities, prosecutor’s offices and courts, in
accordance with the procedure established by the law.”
D. The Act “On procedure for compensation for
damage caused to citizens by the unlawful acts of bodies of inquiry,
pre-trial investigation authorities, prosecutor’s offices and
courts” of 1 December 1994 (as worded at the material
time)
- The relevant provisions of the Act can be found in the
judgment of Volokhy v. Ukraine (no. 23543/02, § 28,
2 November 2006).
E. Resolution No. 4 of the Plenary Supreme Court of 31
March 1995 “On the judicial practice in cases of compensation
for moral (non-pecuniary) damage”
- In
accordance with paragraph 7 of this Resolution, moral (non pecuniary)
damage shall be compensated to the physical person or legal entity
whose rights have been directly affected by the unlawful acts
(inactivity) of the other persons.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicants complained that the search of their home was carried out
in breach of Article 8 of the Convention, which reads 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. Admissibility
1. As to the applicants’ victim status
- The
Court reiterates that it falls first to the national authorities to
redress any violation of the Convention. In this regard, the question
whether an applicant can claim to be the victim of the violation
alleged is relevant at all stages of the proceedings under the
Convention (see, inter alia, Siliadin v. France, no.
73316/01, § 61, ECHR 2005-VII). A decision or measure favourable
to the applicant is not in principle sufficient to deprive him of his
status as a “victim” for the purposes of Article 34 of
the Convention unless the national authorities have acknowledged,
either expressly or in substance, and then afforded redress for, the
breach of the Convention (see, inter alia, Dalban v.
Romania [GC], no. 28114/95, § 44, ECHR 1999-VI; and
Siliadin, cited above, § 62).
- The
Court notes that the domestic authorities unequivocally acknowledged
that the search in the applicants’ flat had been carried out
groundlessly and unlawfully (see paragraph 12 above). This
acknowledgment corresponded to the substance of the applicants’
complaint under Article 8 of the Convention. Accordingly, the
question remains whether sufficient redress was afforded to the
applicants on account of the alleged violation.
- In
this respect the Court observes that after the search was declared
unlawful the police officers involved were disciplined (see paragraph
13 above). The Court considers that those disciplinary measures must
have had remedial effect on the applicants. Still, the Court has to
ascertain whether, in addition to those measures, the applicants
should have been paid compensation.
- As
regards the first applicant, it appears that he did not live in
Tokmak at the relevant time. The Court further notes that the first
applicant never complained before the domestic authorities that he
had suffered any damage as a result of the search operation.
Moreover, at each level of the domestic judicial proceedings the
applicants expressly submitted that it was not the first applicant,
but the second, who sustained damage.
- In
these circumstances the Court considers that after the domestic
authorities acknowledged the unlawfulness of the search in question
and disciplined the police officers, the first applicant obtained
sufficient redress on account of the unlawful search and could no
longer be regarded as a victim of the alleged violation of Article 8
of the Convention (see, mutatis mutandis, Watkins v. the
United Kingdom (dec.), no. 35757/06, 6 October 2009, and
Občianske zdruZenie Zi a nechaj Ziť v. Slovakia
(dec.), no. 13971/03, 9 February 2010). It therefore rejects
the relevant part of the application in accordance with Articles
34 and 35 §§ 3 and 4 of the Convention.
- The
Court cannot, however, make the same conclusion in relation to the
second applicant. It notes that, unlike the first applicant, she did
claim compensation for damage in addition to the measures taken by
the domestic authorities. Having regard to the factual circumstances
of the alleged violation, the Court considers that it is more
appropriate to determine the question of the second applicant’s
victim status together with the substantive issues of her complaint
under Article 8 of the Convention (see, for example, Biriuk v.
Lithuania, no. 23373/03, § 26, 25 November 2008).
Accordingly, it joins this issue to the merits.
2. As to the exhaustion of domestic remedies
- The
Government contended that the second applicant submitted a claim for
damages relying on the Compensation Act, which was manifestly
inapplicable to her case. They insisted that she should have
submitted a claim for damages relying exclusively on the general
provisions of the Civil Code (Article 440-1 of the Civil Code in
particular). As an example of the practical effectiveness of such a
remedy they supplied a decision taken by a first-instance court by
which the plaintiffs were awarded damages from a pre-trial detention
centre on account of inadequate medical care dispensed in that
facility.
- The
second applicant disagreed.
- The Court does not accept the Government’s
objection. It notes that the civil claim filed by the second
applicant explicitly referred both to the general provisions of the
Civil Code and the provisions of the Compensation Act. There was no
sense in the second applicant introducing another civil claim based
exclusively on the provisions of the Civil Code. Moreover, the
position of the domestic courts was that damage caused by unlawful
procedural acts of bodies of inquiry, pre-trial investigation
authorities, prosecutor’s offices and courts could be
compensated only in the cases provided for by the Compensation Act,
which they viewed as lex specialis in relation to the Civil
Code.
- As to the exemplary decision supplied by the
Government, the Court finds it of no relevance for the present case
in particular because it concerned the damage caused by a pre-trial
detention centre, which was not a domestic body covered by the
Compensation Act.
- It
follows that the Government’s contention should be rejected as
unsubstantiated.
3. As to compliance with the six-month rule
- As
an alternative to the non-exhaustion objection, the Government
submitted that the second applicant had missed the six-month
time-limit since the Compensation Act was not applicable to her case.
- The Court reiterates that pursuant to Article 35 §
1 of the Convention, it may only deal with a matter within a period
of six months from the final decision in the process of exhaustion.
If no remedies are available or if they are judged to be ineffective,
the six-month period in principle runs from the date of the act
complained of (see Hazar and Others v. Turkey (dec.), nos.
62566/00 et seq., 10 January 2002). However, special considerations
may apply in 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 the 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. 73065/01, 28 May 2002, and Volokhy,
cited above, § 37).
- The
Court observes that the present application was introduced on
20 March 2004 when the second applicant was still in the process
of airing her complaint before the domestic courts. As noted above,
the applicant’s claim was based not exclusively on the
Compensation Act but also on the provisions of the Civil Code, which
the Government considered to be an appropriate legal framework for
obtaining compensation by the second applicant. Accordingly, the
second applicant might have also reasonably relied on those legal
provisions until, at least, the determination of the case by the
court of appeal. Indeed, the application was submitted to the Court
within the six-month time-limit after the decision of the court of
appeal of 16 December 2004. In view of these considerations, the
Court finds that the second applicant can be regarded as having
legitimately raised this issue at the domestic level and those
procedural steps should not be held against her when deciding the
question of the admissibility of the complaint. It therefore rejects
the Government’s objection to this effect.
4. Conclusion
- Having
reserved the question of the second applicant’s victim status,
the Court notes that her complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
- The
second applicant maintained that there had been a violation of
Article 8 of the Convention.
- The
Government did not make any submissions on the merits of the
complaint.
- The
Court finds that the impugned search constituted an interference with
right of the second applicant to respect for her private life and
home. The question remains whether this interference was justified
under paragraph 2 of Article 8 and, more particularly, whether the
measure was “in accordance with the law” for the purpose
of that paragraph.
- The Court reiterates that the expression “in
accordance with the law” in Article 8 § 2 of the
Convention essentially refers back to national law and states the
obligation to conform to the substantive and procedural rules thereof
(see Panteleyenko v. Ukraine, no. 11901/02, § 49, 29 June
2006).
- In
the instant case the Court notes that the fact of the unlawfulness of
the search was established twice by the domestic authorities, namely
by the Regional Prosecutor’s Office and by the Tokmak District
Court (see paragraphs 12 and 13 above). While the relevant decision
of the Tokmak District Court was subsequently quashed, the substance
of its conclusions had not been called into question by the higher
courts. Moreover, the results of the inquiry of the Regional
Prosecutor’s Office concerning the unlawfulness of the search
had never been challenged. The Court does not see any reason to
depart from those conclusions of the domestic authorities and finds
that the search was carried out contrary to domestic law.
- The
Court further notes that, while the domestic authorities declared the
search unlawful and disciplined the police officers, they did not
offer any compensation to the second applicant. It appears, however,
that the search was carried out in the presence of the second
applicant and the guests who had been invited to celebrate the
birthday of the applicants’ son.
- Having
regard to these particular circumstances, the Court considers that a
compensatory measure, unsuccessfully requested by the second
applicant, was decisive for the loss of victim status by the second
applicant. The Court therefore holds that, in as much as the second
applicant has not been awarded any compensation, she can still claim
to be a victim under Article 8 of the Convention.
-
The Court further finds that since the interference in question was
contrary to national law, as established by the domestic proceedings,
it did not satisfy the requirement of lawfulness provided by Article
8 of the Convention. It follows that there has been a violation of
that provision.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
second applicant complained under Article 6 of the Convention that
the domestic courts had unfairly considered her claim for damages in
connection with the unlawful search.
- The
Court notes that the claim of the second applicant was rejected for
the reason that under the domestic law she had no right to
compensation for the unlawful search of the flat. Given that the
complaint indicated the existence of a legislative gap, the Court
decided to examine it from the standpoint of Article 13 of the
Convention (see, mutatis mutandis, Z and Others v. the
United Kingdom [GC], no. 29392/95, § 102-103, ECHR 2001 V;
Volokhy, cited above, §§ 55-61; and Iliya
Stefanov v. Bulgaria, no. 65755/01, §§ 57-60, 22
May 2008).
- Article
13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
- The
Court notes that the complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It notes that
it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
- The
Government maintained their position that the second applicant had an
effective remedy at her disposal. They repeated their submissions
under Article 8 of the Convention that the second applicant could
have lodged a civil claim based exclusively on the Civil Code. The
second applicant disagreed.
- The
Court refers to its findings in paragraphs 34 and 35 above and notes
that another civil claim based exclusively on the provisions of the
Civil Code would have been useless for the second applicant, since
she had invoked those legal provisions in her first claim. It further
notes that the domestic courts dealing with her claim concluded that
damage caused by unlawful procedural acts of bodies of inquiry,
pre-trial investigation authorities, prosecutor’s offices and
courts could be compensated only in the cases provided for by the
Compensation Act, which they viewed as lex specialis in
relation to the Civil Code. The domestic courts further held that the
second applicant could not claim damages under the Compensation Act
as she was not directly involved in the criminal proceedings in
question.
- Accordingly,
the approach taken by the domestic courts suggests that any civil
claim by the second applicant based either on the Civil Code, the
Compensation Act, or a combination thereof would have been rejected.
The Court notes that, as a result of such restricted interpretation
of the domestic law, the rights of the second applicant had not been
fully protected at the domestic level.
- The
Court further notes that the Government did not point to any other
avenue which the second applicant could have used to obtain
compensation for the breach of her right under Article 8 of the
Convention.
- In
these circumstances the Court considers that there has been a
violation of Article 13 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicants complained under Article 6 § 1 of the
Convention that the domestic courts took too long to deal with their
civil claims. The first applicant also complained under the same
provision of the Convention that the domestic courts had been unfair
when examining his claim.
- Having
considered the applicants’ 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.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicants did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award them any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application of the first applicant
inadmissible;
- Joins to the merits the issue of the
second applicant’s victim status;
- Declares the complaints of the second applicant
concerning the search of her home (Article 8 of the Convention) and
the lack of effective remedies for obtaining redress on that account
(Article 13 of the Convention) admissible and the remainder of her
complaints inadmissible;
- Holds that there has been a violation of Article
8 of the Convention in respect of the second applicant and that she
can still claim to be a victim of that violation;
- Holds that there has been a violation of Article
13 of the Convention in respect of the second applicant.
Done in English, and notified in writing on 30 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Renate Jaeger
Deputy Registrar President
