CASE OF RATUSHNA v. UKRAINE
No violation of Art. 8;Violation of Art. 13;Remainder inadmissible
Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
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)”.