CASE OF GOLOVAN v. UKRAINE
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home;Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award
Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
6. The applicants are spouses. They were born in 1968 and 1965 respectively and live in Donetsk. The first applicant is a lawyer practising in Ukraine. He is the President of the law firm Pravis, subsequently renamed Golovan and Partners. 7. The applicants are the co-owners of a flat which, at the material time, was used by the first applicant as his office. The deed of ownership was issued in the name of the second applicant. 8. In February and April 2005 the first applicant entered into legal services agreements with a company, K. Under those agreements K. transferred to the first applicant certain documents concerning its commercial activity. 9. On 4 April 2005 the investigator of the Slovyansk Tax Office instituted criminal proceedings against the officials of company K. for alleged tax evasion and forgery of documents. 10. On 19 April 2005 the investigator issued a search warrant for K.’s documents in the office of the first applicant. The warrant was approved by the Prosecutor of Kramatorsk. In the reasoning part of the search warrant the investigator noted that it had been established in the course of pre-trial investigation that a number of bookkeeping, tax accounting and other documents had been stored at the first applicant’s law office. 11. The warrant authorised the search and seizure of the following material: “contractual documents, bookkeeping documents, primary and summary accounting documents, tax accounting and other documents which concern the relationships between [K.] and [company D.] as regards the delivery of electricity by the latter to the former company in the period from 1 January 2001 to date; decisions and other procedural documents issued in the same period by the commercial courts when dealing with disputes between the two companies.” 12. On 5 May 2005 the investigator, the tax police officers, and two attesting witnesses arrived at the first applicant’s office to carry out the search. The first applicant objected to the search. He stated that the flat was private property and, accordingly, any search of it could be carried out only on the basis of a court decision, as required by Article 177 of the Code of Criminal Procedure. He further stated that the documents requested by the investigator had been entrusted to him by K. in his capacity as the company’s lawyer and, by virtue of section 10 of the Bar Act, could not be seized without his consent. 13. The investigator ignored the first applicant’s objections and commenced the search. In the course of the search a number of K.’s documents, including some dated before 2001, were seized. 14. The two attesting witnesses countersigned the search report compiled by the investigator. The witnesses were born in 1984 and at the relevant time were studying at the Donbas Machinery Building Academy. Subsequently, in the course of “pre-investigation” enquiries, the two witnesses confirmed that the first applicant repeatedly informed the investigator that the searched premises were the individuals’ private property. 15. On 6 May 2005 the seized documents were attached to the criminal case file as material evidence. 16. On 2 August 2005 the decision of 4 April 2005 instituting criminal proceedings against the officials of company K. was quashed as unfounded. 17. On 6 and 11 May 2005 the applicants complained to several prosecutors’ offices at various levels about the search of their premises. They requested that criminal proceedings be instituted against those who had carried out the search. 18. On 25 May and 8 July 2005, 23 February, 4 April and 25 August 2006, 23 March and 15 June 2007, 28 March, 5 September and 3 October 2008, 20 April 2009, 19 March, 9 April and 9 August 2010 and 4 March 2011 the prosecutor’s offices adopted decisions refusing to open criminal proceedings against the investigator and the police officers involved in the search. According to those decisions there was no indication that criminal offences under Articles 162, 364, 365, and 397 of the Criminal Code had been committed. The latest decision specified in particular that at the time of the search the flat had been used as business premises, while the documents had been seized as evidence in the criminal case and therefore could not be covered by the lawyer-client privilege. 19. All those decisions were quashed as unfounded, either by the supervising prosecutor or by the court. In quashing the impugned decisions the supervising authorities relied on the provisions of the Code of Criminal Procedure requiring preliminary court authorisation for the search of an individual’s premises and on those of the Bar Act safeguarding the professional secrecy afforded to lawyers. 20. In particular, on 27 December 2011 the Voroshylovskyy District Court of Donetsk, quashing the prosecutor’s decision of 4 March 2011 refusing to open criminal proceedings, found that the prosecutor’s office had failed to take into account the fact that the searched flat was owned by private individuals and that, pursuant to domestic legislation, any search of it could be carried out only on the basis of a court decision. Besides, the materials of the enquiries suggested that the seized documents had been entrusted to the first applicant in the course of his activity as a lawyer and had been covered by lawyer-client privilege. The court therefore concluded that the search and the seizure of documents had been carried out unlawfully. The court remitted the case for additional “pre-investigation” enquiries, for the adoption of the proper decision under Article 97 of the Code of Criminal Procedure. 21. On 23 January 2012 the Court of Appeal upheld that decision of the first-instance court, adding that the investigative authorities had not yet examined whether the investigator had seized documents which had no relevance to the criminal case against the officials of company K. 22. Article 30 of the Constitution provides: “Everyone shall be guaranteed the inviolability of his or her dwelling. Any entry into, examination of or search in the dwelling or other possession of a person shall not be permitted other than pursuant to a reasoned court decision. In urgent cases connected with the rescuing of human life and preservation of property or with the direct pursuit of criminal suspects, the law may provide for a different procedure for entering into, examining or searching in the dwelling or other possession of a person.” 23. Article 162 of the Code provides: “1. Unlawful entry into, examination of or searches in a dwelling or other possession of a person, unlawful eviction or any other actions violating the inviolability of a citizen’s home – shall be punishable by a fine of fifty to one hundred times the amount of the non-taxable minimum-level income or by up to two years’ correctional labour, or by a restriction of liberty for up to three years. 2. The same acts, if committed by officials... – shall be punishable by imprisonment for two to five years.” 24. Article 364 of the Code, as worded at the relevant time, provided: “1. Abuse of power or office, namely intentional use, for financial gain or with other personal interest or in the interest of third persons, by an official of his/her power or office against the interest of the service, if it has caused serious damage to State or public interests or to lawful interests, rights and freedoms of natural or legal persons, – shall be punishable by up to two years’ correctional labour or by up to six months’ detention or by a restriction of liberty for up to three years, with a prohibition for up to three years on the holding of certain posts or the performance of certain activities. ... 2. The same acts, if they have caused grave consequences, – shall be punishable ... 3. Acts as described in paragraphs 1 or 2 of this Article, if committed by law-enforcement officers, – shall be punishable by imprisonment of between five and twelve years, with a prohibition of up to three years on holding certain posts or performing certain activities, and with confiscation of property.” 25. Article 365 § 1 of the Code, as worded at the relevant time, provided: “The exceeding of power or office, namely the intentional commission of acts by an official which go manifestly beyond the scope of the rights and powers vested in him or her and which cause serious damage to the State or public interest or to the lawful interests, rights and freedoms of natural or legal persons – shall be punishable by up to two years’ correctional labour or by restriction of liberty for up to five years, or by imprisonment for between two and five years, with a prohibition for up to three years on the holding of certain posts or the performance of certain activities.” 26. Article 397 of the Code provides: “1. Any obstruction of defence counsel or another representative in the course of his/her lawful activities in providing legal assistance, or a violation of the lawful guarantees of his/her activities and professional secrecy – shall be punishable by a fine of one hundred to two hundred times the amount of the non-taxable minimum-level income or by up to two years’ correctional labour, or by up to six months’ detention, or by a restriction of liberty for up to three years. 2. The same acts, if committed by officials in the performance of their duties – shall be punishable by a fine of three hundred to five hundred times the amount of the non-taxable minimum-level income or a restriction of liberty for up to three years with a prohibition of up to three years on the holding of certain posts or the performance of certain activities.” 27. Article 4 of the Code provides: “The court, the prosecutor, the investigator or the body of inquiry must, to the extent that it is within their power to do so, institute criminal proceedings in every case where evidence of a crime has been identified, take all necessary measures provided by law to establish whether a crime has been committed, identify the perpetrators, and punish them.” 28. Under Article 28 of the Code, a person who has sustained damage as a result of a criminal offence can lodge a civil claim against an accused at any stage of criminal proceedings before the beginning of the consideration of the case on the merits by a court. A civil claimant in criminal proceedings shall be exempt from the court fee for the lodging of a civil claim. 29. The relevant parts of Article 97 of the Code provide: “A prosecutor, investigator, body of inquiry or judge is obliged to accept applications or communications regarding crimes which have been committed or planned, including in cases that are outside its competence. Following an application or communication in respect of a crime, the prosecutor, investigator, body of inquiry or judge is obliged, within a three-day time-limit, to adopt one of the following decisions: (1) to institute criminal proceedings; (2) to refuse to institute criminal proceedings; (3) to remit the application or communication for further examination according to jurisdiction. ... In the event that it is necessary to examine the information or communication in respect of a crime before initiating criminal proceedings, such an examination shall be conducted by a prosecutor, investigator or body of inquiry, within a time-limit of ten days, by obtaining statements from individual citizens or officials or by requesting the necessary documents. ...” 30. Article 114 of the Code provides that in the course of the investigation the investigator shall make all the decisions on his own as regards the direction of the investigation and the investigative actions that should be taken, except in cases where the law requires approval by the court or the prosecutor. 31. Article 127 of the Code provides, inter alia, that in the course of the search at least two witnesses should be present. The witnesses should be unbiased. The witnesses cannot be chosen from among the victims, their relatives, the relatives of the suspect or the accused or officers of the body of inquiry or investigation. 32. Article 177 of the Code provides: “... A search in a person’s home and other possession may be conducted only on the basis of a reasoned court decision, except for urgent cases. ... A court decision 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. In urgent cases connected with the rescuing of human life and preservation of property or with the direct pursuit of criminal suspects, the search may be performed without a court decision. The search report shall state the reasons for its performance without a court decision. Within twenty-four hours the investigator shall refer a copy of the search report to the prosecutor. ” 33. Article 236-1 of the Code provides: “Complaints against a decision of a body of inquiry, investigator, or prosecutor refusing to open criminal proceedings shall be lodged with the district (city) court ... by the person whose interests are affected, or by a representative of that person, ... within seven days of receipt of the decision or of information from the prosecutor that he refused to quash the decision.” 34. Article 236-2 of the Code provides: “Complaints against a decision of a prosecutor, investigator or body of inquiry refusing to open criminal proceedings shall be examined by a single judge within ten days of the arrival of the case file at the court. The judge shall request relevant materials on which the refusal to initiate criminal proceedings was based, examine them and inform the prosecutor and the complainant of the date on which it will be examined. If necessary a judge shall hear explanations from the person who lodged the complaint. A verbatim record of the hearing shall be drawn up. ... a judge shall take one of the following decisions: 1) to quash the decision refusing to open criminal proceedings and return the case file materials for additional [“pre-investigation”] enquiries; 2) to reject the complaint. A judge’s decision in this regard may be appealed against before the court of appeal within seven days of its adoption, by a prosecutor or a complainant. ...” 35. Section 10 of the Act provides that documents relating to a lawyer’s professional activity may not be examined, divulged or seized without the lawyer’s consent.