CASE OF ZOSYMOV v. UKRAINE
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits
5. In 1996 the applicant and his wife started a family business which involved, among other things, the replication of digital data and the sale of blank data storage devices. They used a flat on P. Street in Kyiv owned by the applicant’s mother as their office, in which they had copying equipment set up. 6. On 20 August 2002 several police officers from the Kyiv Economic Crime Unit (“KECU”) inspected the applicant’s office at P. Street in his and his wife’s presence. 7. On the same date the KECU officers also inspected the applicant’s garage and his car. 8. After the inspection the police seized seven computers, sixty-six optical disc recording devices, a printer, a modem, over three thousand optical discs with recordings, some thirty thousand blank optical discs and some seven thousand printed disc covers. The seizure was documented on three standardised forms (one for each site inspected), which included the following pre-filled printed text: “Beginning of the inspection: _______ [time, date] End of the inspection: _________ [time, date] I (we), ______ of the KECU on the premises of ______ [site] ... inspected and seized from _________ [name, address, place of work of the person whose possessions were subject to seizure] the following ________ [list of seized items]. The seized items will be stored with the KECU pending resolution of the matter on the merits. This Deed has been completed in duplicate and read out. ...” 9. It appears from the forms that the inspection of the office started at 7.30 p.m. and ended at 7.30 a.m. the following morning, 21 August 2002. Other sites were inspected at the same time – the car from 7.30 p.m. until 1.34 a.m. and the garage between10.25 and 11.45 p.m. 10. According to the applicant, for the whole night the police officers questioned him, his wife and the members of their extended family who were on the premises. The questions related to the applicant’s family business and the observance of copyright law in the business’s use of software and in its replicating activities. 11. On 22 August 2002 a report was published on the Ministry of Interior’s website, which stated that the Kyiv Police had: “... identified a criminal group of two [individuals]. These two [individuals] organised an entire underground production [facility] in their office. With the help of computer equipment they replicated CD-ROMs containing various programs and games ...” 12. The report also featured a photograph of the applicant’s wife without a caption and listed the seized items, declaring their estimated value as 117,000 Ukrainian hryvnias (UAH). 13. On 15 November 2002 investigator O.K. from the Investigative Department of the Kyiv Police instituted criminal proceedings concerning “the suspected breach of copyright” under Article 176 of the Criminal Code of Ukraine, without naming any suspected offenders. In his decision, he referred to the search of the office of the applicant and his wife and the seizure of their belongings on 20 August 2002. He further noted that they had been found not to have a license agreement with the law firm S., the official representative of the Microsoft Corporation, whose software they had used in their business, thereby causing damage to the software copyright owner. 14. On 20 November 2002 O.K. declared the property seized from the applicant and his wife as physical evidence to be stored by the police pending the investigation of the case. 15. On 21 November 2002 the Shevchenkivsky District Court of Kyiv (hereinafter “the District Court”) issued search warrants in respect of the applicant’s and his wife’s flats, noting that they were suspected of breaching criminal legislation concerning copyright protection. 16. On 23 November 2002 these flats were searched pursuant to the warrants. It appears from the case file that no items were seized. 17. As follows from the applicant’s submissions, after these searches and several interviews, the proceedings stagnated, with the police never pressing any charges against the applicant or any other person. 18. On numerous occasions the applicant asked the police and the prosecutor’s office to order the return of his seized property. On various dates (in particular 24 February 2003, 11 August 2003 and 13 May 2005) the respective authorities rejected his requests, notifying him that his seized property constituted physical evidence in a criminal case, that keeping it in the possession of the authorities was justified by the need to carry out expert assessments and that, more generally, in accordance with Article 81 of the Code of Criminal Procedure 1960 (“the CCP”), the fate of the items had to be determined upon the final resolution of the case. 19. On 27 September 2004 the Kyiv prosecutor’s office rejected a request by the applicant to have the criminal case in which his possessions had been seized transferred to court with a view to having the proceedings closed as time-barred. They noted, in particular, that proceedings could only be terminated on such grounds in cases in which a particular person had been indicted. 20. On 25 February 2005 the police rejected a request by the applicant to have the criminal proceedings discontinued for lack of corpus delicti, noting that discontinuing proceedings on such grounds also presupposed the identification of a particular defendant. 21. On 4 April 2004 the police informed the applicant in response to his complaint about being denied any status in the criminal proceedings – which, in his view, concerned him as a de facto suspect – that there were no grounds for instituting a criminal case against him personally. There was insufficient evidence that he had unlawfully replicated copyrighted materials or distributed counterfeit products. 22. In March 2006 the criminal proceedings were still pending. No investigative measures concerning the applicant had been ordered. His property remained in the control of the police as physical evidence in the case. 23. In their subsequent submissions – the last correspondence from the applicant’s lawyer and the Government was received in March and June 2013 respectively – the parties did not provide any further information concerning the outcome or status of the aforementioned criminal proceedings and the fate of the seized items. 24. On an unspecified date the applicant and his wife instituted defamation proceedings against the police authorities for publishing an inaccurate crime report on their website (see paragraph 11 above), seeking the retraction of the information contained therein. 25. On 27 October 2003 the District Court allowed the claim. 26. It follows from the case file that this judgment was not appealed against and became final. 27. On 22 August 2003 the prosecutor’s office rejected the applicant’s request for criminal proceedings to be instituted against three KECU officers who had taken part in the search of his office, car and garage and had seized his property. It was noted in the relevant decision, in particular, that the police officers had not “searched” but “inspected” the applicant’s office and other sites. The inspection had been lawful, as it had been carried out in the police officers’ competence to carry out investigative and operational activities for the purpose of crime detection within the meaning of the Law of Ukraine “On operational and investigative activities” and with the applicant’s and his wife’s consent. 28. On 13 October and 4 December 2003 respectively the Pecherskyy District Court and Kyiv City Court of Appeal (“the Court of Appeal”) rejected appeals by the applicant against that decision. 29. On an unspecified date the applicant instituted civil proceedings in the Shevchenkivskyy District Court in Kyiv to reclaim his computer equipment, optical discs and other property seized by the police. 30. On 10 October 2003 the court suspended these proceedings pending resolution of the criminal case in which the property had been retained by the police (see paragraphs 13-23 above). 31. In April 2003 the applicant lodged a complaint against the Investigative Department of the Kyiv Police with the District Court. Initially referring to Article 248 of the Code of Civil Procedure 1963 in force at the material time, he alleged, in particular, that the inspection of his office and search and seizure of his property in August 2002, as well as the institution of criminal proceedings on 15 November 2002 had been unlawful. 32. In court the applicant reformulated his claims. Referring to Article 234 of the CCP (see paragraph 46 below) he contended that there had been no lawful grounds for instituting the criminal proceedings concerning the suspected breach of copyright. He requested that the investigator’s decision of 15 November 2002 (see paragraph 13 above) be set aside. In this respect the applicant submitted, in particular, that on 20 and 21 August 2002 KECU officers had conducted an arbitrary search and seizure of his property without a court warrant or any other lawful grounds for taking such actions. The applicant argued that there was no reason to suspect that a crime had been committed justifying the search and seizure of his belongings; that, in breach of the applicable law, the measures had been taken at night-time; that the same people had been appointed as lay witnesses for all three sites, which had been inspected all at the same time; and that following the institution of the criminal proceedings he had not been summoned to participate in any investigative activities. The proceedings at issue had been instituted in bad faith, to prevent him from recovering his seized property and to cover up the unlawful conduct of the KECU. 33. On 26 June 2003 the District Court found that Article 234 of the CCP (not Article 248 of the Code of Civil Procedure 1963) was the appropriate provision for examining the applicant’s allegations. It rejected them, finding that the applicant lacked standing to bring the proceedings. In particular, the disputed criminal case had been instituted “into the matter” rather than “against the applicant” (see paragraph 46 below quoting Article 98 of the Code of Criminal Procedure), who had neither been a formal suspect nor a defendant in the proceedings at issue. He could not therefore claim that his rights had been breached by the institution of the proceedings. As regards his complaints concerning the allegedly unlawful actions of the police, in accordance with Article 234 of the Code of Criminal Procedure, these complaints could be brought only within the framework of the above-mentioned criminal case and fell to be examined by the court which would try that case, during either the preliminary hearing or trial. 34. The applicant appealed, stating in particular that he had been a de facto suspect in the proceedings at issue. As he had been denied formal status as a suspect, he could not defend himself properly. In addition, as the proceedings had been artificially protracted, he had been deprived of the opportunity to reclaim his seized property pending resolution of the case. 35. On 17 September 2003 the Court of Appeal quashed the District Court’s decision and decided to discontinue the proceedings. Like the lower court, it considered that the applicant had no standing to bring the proceedings at issue and, more generally, that the actions of the police authority complained of could only be challenged before the court examining the criminal case, after the relevant investigation had been completed and the case transferred to the court for examination. In these circumstances, rather than rejecting the applicant’s complaints on the merits, the proceedings had to be discontinued. 36. The applicant appealed on points of law. 37. On 13 July 2004 the Supreme Court of Ukraine quashed the previous decisions and remitted the case to the lower courts for fresh consideration. It noted, in particular, that on 30 January 2003 the Constitutional Court of Ukraine had found that the provisions of Article 234 of the CCP, which had made it impossible to appeal separately against decisions of investigative authorities concerning the institution of criminal proceedings, were unconstitutional (see paragraph 47 below). The foregoing ruling also meant that courts should likewise admit for consideration complaints about other procedural actions, decisions or inaction on the part of investigative authorities, which could result in irreparable or grave damage to an individual’s constitutional rights if their judicial review were to be delayed. The Supreme Court further noted that there was sufficient evidence to suggest that the applicant had been substantially affected by the criminal proceedings at issue – in particular, with regard to the search of his premises and the seizure and retention of his belongings. It stated that the proceedings appeared to be protracted without any justification and instructed the lower courts to verify whether the conduct of the investigative authorities could indicate ulterior motives aimed at concealing unlawful actions on their part. 38. On 14 October 2004 the District Court allowed the applicant’s complaint and revoked the decision of 15 November 2002. Regard being had to the grounds for taking that decision, the proceedings should have been instituted against the applicant, who had been a de facto suspect in relation to breach of copyright. Institution of the proceedings “into the matter” without indicating a specific defendant had been artificial and had restricted the applicant’s procedural rights. The police officers’ actions which had led to the institution of the proceedings had been tainted by procedural breaches, regard being had, in particular, to the unjustified inspection of the premises at night-time in the absence of the flat owner (the applicant’s mother ), as well as various other procedural violations. 39. On 3 November 2004 the Kyiv prosecutor’s office appealed against that decision. 40. On 24 December 2004 the Court of Appeal quashed the District Court’s decision and remitted the criminal case concerning the suspected breach of copyright to it for further investigation. By assessing the lawfulness of the investigative actions, the District Court had in fact touched upon the admissibility of evidence, a matter which could only be examined in the course of a criminal trial. It further found that by instituting the criminal proceedings “into the matter” rather than “against the applicant”, the police had not caused irreparable damage to the applicant’s constitutional rights such as would necessitate the setting aside of their decision by way of judicial proceedings. Any irregularities in the formulation of the decision to institute criminal proceedings could be more appropriately addressed by the prosecution authorities. 41. The applicant appealed on points of law, alleging in particular that the Court of Appeal had breached procedural rules in admitting the appeal of the prosecutor’s office. 42. On 25 July 2005 Justice V.P. of the Supreme Court refused to consider the applicant’s request for leave to appeal on points of law, stating that the Supreme Court lacked jurisdiction over the decisions taken by the Court of Appeal in the relevant matters, unless they concerned the termination of proceedings.