ULYANOV v. UKRAINE
Inadmissible
Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Ruslan Anatoliyovych Ulyanov, is a Ukrainian national who was born in 1970 and lives in Kremenchuk. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. The facts of the case, as submitted by the parties, may be summarised as follows. On 8 August 2001 the applicant, a lawyer by profession, entered into a legal services agreement with a company, K. Under that agreement K. transferred to the applicant certain bookkeeping documents relating to an ongoing tax dispute with the Kremenchuk Tax Office (“the Tax Office”). On an unspecified date the Tax Office investigator instituted criminal proceedings against the managing directors of K. for engaging in prohibited commercial activity and forging official documents. An expert bookkeeping examination was ordered in the case. On 11 March 2002, following a request by the investigator, the Kryukivskyy District Court of Kremenchuk (the “District Court”) ordered the seizure of K.'s bookkeeping documents, which had been transferred to the applicant, from the applicant's home and other property. In its reasoning the District Court noted that the applicant had refused the investigator's request to produce the documents he had received from K. despite the fact that they were needed for an expert examination in the course of criminal proceedings against K.'s managing directors. At about 4 p.m. on the same day police officers from the Tax Office, some wearing masks, entered the applicant's office during a meeting with clients. Referring to the court order for seizure, the officers requested K.'s documents. The applicant refused to produce the documents, arguing that they were privileged under the Bar Act. The applicant was then ordered to stand up and face the wall, following which a masked officer searched him. He was then ordered to empty his pockets. At 4.30 p.m. the applicant was taken from his office, placed in the police car and driven to the Tax Office. According to the applicant, he was forced to leave his office because of his refusal to produce the documents. According to the Government, the applicant agreed to follow the officers of his own free will. At 5.30 p.m., after an interview with the head of the Tax Office, the applicant was driven back to his office. On 12 March 2002, at the investigator's request, the District Court ordered a search of the applicant's home and other property, noting that on 11 March 2002 he had refused to produce documents pursuant to the previous court order for seizure. That night the tax officers searched the applicant's office, car and home but failed to find K.'s documents. On 12 March 2002 the applicant lodged a complaint under Article 248-1 of the Code of Civil Procedure (the “CCvP”), claiming that the officers from the Tax Office who had tried to seize the documents in his office on 11 March 2002 had acted in contravention of the Bar Act. He further claimed that the masked officer had unlawfully ordered him to face the wall, searched him and requested him to empty his pockets. Lastly, the applicant argued that the officers had detained him unlawfully for an hour. On 19 January 2004 the District Court partly upheld the applicant's complaint of 12 March 2002 against the Tax Office, finding that the tax police officers had unlawfully tried to seize documents from the applicant which had been entrusted to him in the course of his professional activities, and that the masked officer had acted unlawfully in ordering the applicant to face the wall, searching him and requesting him to empty his pockets. The District Court further established that the applicant had been detained between 4.30 p.m. and 5.30 p.m. on 12 March 2002, but declined to declare that detention unlawful as the applicant had failed to provide any evidence in that regard. On 20 April 2004 the Poltava Regional Court of Appeal (“the Court of Appeal”) considered the appeal by the Tax Office. Referring to the exceptions to the jurisdiction of the courts listed in Article 248-3 of the CCvP, the Court of Appeal stated that the applicant's complaint could not be considered in the course of that type of judicial proceedings. It therefore quashed the judgment of 19 January 2004 and discontinued the proceedings in that case. On 20 May 2004 the applicant lodged an appeal in cassation against the decision of 20 April 2004. On 9 December 2008 the Higher Administrative Court rejected the applicant's appeal in cassation. The applicant did not provide a copy of that decision. On 7 May 2002, relying on Article 248-1 of the CCvP, the applicant lodged two complaints with the District Court requesting it to annul the court orders of 11 and 12 March 2002 authorising the search and seizure operations. He claimed that both orders were unlawful as they had been made in breach of the guarantees provided by the Bar Act. On 31 May 2002 the District Court rejected the complaints as inadmissible. It relied on Article 248-3 of the CCvP, under which the courts did not have jurisdiction for dealing with such complaints. On 10 October 2002 the Court of Appeal upheld the decisions of the District Court of 31 May 2002. On 15 October 2003 the Supreme Court rejected an appeal in cassation by the applicant against the lower courts' decisions in respect of his complaint against the search order. On 2 April 2008 the Higher Administrative Court rejected an appeal in cassation by the applicant against the lower courts' decisions in respect of his complaint against the seizure order. Article 110 of the Code provides, inter alia, that the acts and decisions of a body of inquiry can be challenged before a court. The relevant complaints shall be considered by the court during the preliminary hearing or the trial unless another procedure established by this Code applies. Article 177 of the Code provides, inter alia, that a search of a person's home and other property may be conducted only pursuant to a reasoned court order, except in emergencies. If a search is needed, the investigator lodges a request, approved by a prosecutor, with the court located in the district where the investigation is being carried out. A judge is required immediately to examine the request in the light of the case file, and, if necessary, to hear submissions from the investigator and the prosecutor, following which he may authorise the search request or reject it. A court order authorising the search is not subject to appeal. A refusal by the court to allow a search may be appealed against by the prosecutor within three days. Article 178 of the Code provides, inter alia, that the seizure of documents and other items relating to criminal proceedings found in a person's home or other property may be effected only on the basis of a reasoned court order made in accordance with the procedure laid down in Article 177 of the Code. Article 248-1 of the Code provided that anyone who considered that his or her rights or freedoms had been infringed by a decision, act or omission of a State body, legal entity or official could lodge a complaint with a court. Article 248-3 §§ 1 and 4 of the Code provided that such complaints were outside the courts' jurisdiction if they concerned a decision, act or omission by an official of a body of inquiry, pre-trial investigation authority, prosecutor's office or court which could be challenged by a different procedure. In accordance with Article 248-6 of the Code, if such a complaint concerned a dispute that had to be resolved in civil adversarial proceedings, the court had to decline to examine the complaint and explain to the claimant that he was entitled to lodge a civil claim. In this decision, the Constitutional Court declared Article 248-3 § 4 of the Code of Civil Procedure unconstitutional to the extent that it did not give the courts jurisdiction to hear complaints concerning decisions, acts or omissions by officials of bodies of inquiry, pre-trial investigation authorities or prosecutor's offices in cases where the legislation provided only for a non-judicial remedy. It further found that that Article did give the courts jurisdiction to hear complaints concerning the decisions, acts or omissions of court officials if those decisions, acts or omissions were confined to the performance of administrative functions. The relevant provisions of the Act have been summarised in the judgment of Volokhy v. Ukraine (no. 23543/02, § 28, 2 November 2006). Section 10 of the Act provides that documents relating to an advocate's professional activity may not be examined, divulged or seized without the advocate's consent.