CASE OF KUZMENKO v. UKRAINE
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary
5. The applicant was born in 1974 and lives in Chernigiv. 6. On 25 January 2007 the Desnyanskiy District Court in Chernigiv (“the District Court”) issued a warrant to search the applicant’s flat for a mobile telephone, which had been reported stolen. The relevant part of the ruling read: “Acting investigator has applied to the court with a request to authorize search of the dwelling of [the applicant] ... with a view to locating a mobile telephone “Nokia7270” stolen from private entrepreneur [K.] ... [theft] having taken place on 2 December 2006 at night. During the hearing, the acting investigator and the prosecutor have supported their request ... Having heard the acting investigator [and] the opinion of the prosecutor, and having examined the material of the criminal case, the court concludes that ... [it] has been provided with sufficient data indicating a possibility that the Nokia 7270 mobile telephone may be at the [applicant’s] place of residence.” 7. On 30 January 2007 the police searched the applicant’s flat in his presence and seized three mobile telephones, which, according to the applicant, belonged to him and his family members. As appears from a poorly legible copy of the list of the seized items prepared by the police, two of these telephones were apparently of Samsung and one – of Nokia make. According to the applicant, on an unspecified date the seized telephones were returned, and neither he nor any of his family members were ever indicted or involved in any other way in the criminal proceedings giving rise to the search warrant. 8. On 3 March 2007 the applicant lodged an administrative complaint with the District Court, alleging that his home had been searched arbitrarily and seeking moral damages for breaching inviolability of his home. 9. On 5 March 2007 the District Court refused to examine the above complaint, citing a lack of jurisdiction. It noted that all complaints regarding the unlawfulness of procedural actions by law-enforcement authorities taken in connection with a criminal investigation had to be lodged within the framework of relevant criminal proceedings based on Articles 234 and 236 of the Code of Criminal Procedure of Ukraine (“the CCP”), then in force. 10. The applicant appealed against that decision. He alleged that there was no meaningful opportunity for him to obtain redress on the basis of the CCP provisions, since a criminal court could only examine complaints concerning the actions of investigation authorities in the context of its examination of a criminal case. In the applicant’s situation, such a remedy would not be effective, since he had no procedural status in the criminal proceedings at issue, and had never been informed of the progress of those proceedings. Moreover, it was not certain whether or when the case would reach trial stage. However, as the applicant considered himself to have been a victim of an arbitrary search, regardless of the outcome of the relevant criminal investigation, he also considered that he had standing to bring an administrative complaint under Articles 2 and 4 of the Code of Administrative Justice of Ukraine (“the CAJ”). 11. On 15 May 2007 the Kyiv Administrative Court of Appeal rejected the appeal by the applicant, having essentially endorsed the findings of the first-instance court. 12. The applicant appealed in cassation. He reiterated the arguments raised in his ordinary appeal and additionally submitted that his claim against the police for non-pecuniary damages could not be examined and resolved within the framework of criminal proceedings against a third party. 13. On 13 May 2009 the Higher Administrative Court of Ukraine rejected the applicant’s cassation appeal.