CASE OF BAGIYEVA v. UKRAINE
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary
5. 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. 8. 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. 13. 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. 14. 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. 26. 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.