CASE OF VOLOKHY v. UKRAINE
Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 8;Violation of Art. 13;Non-pecuniary damage - financial award
Peer Lorenzen
5. The applicants were born in 1933 and 1961 respectively and live in the city of Poltava. 6. In May 1996 the Poltava Regional Police Department (hereinafter – the PRPD) instituted criminal proceedings for tax evasion against Mr V., who is, respectively, the son of the first applicant and the brother of the second applicant. On 28 May 1996 the investigator placed Mr V. under an obligation not to abscond. 7. On 4 September 1996, following the failure of Mr V. to appear for interrogation and in the absence of information about his whereabouts, an arrest warrant for Mr V. was issued. 8. On 6 August 1997 the PRPD investigator issued an order for interception and seizure of the postal and telegraphic correspondence of the applicants (hereinafter – “the interception order”) on the following grounds: “The private entrepreneur Mr V., during the period between 1 January 1994 and 1 January 1996, intentionally did not pay taxes to the State budget in the amount of UAH 12,889, having caused damage and substantial losses to the State. On 28 May 1996 the preventive measure – obligation not to abscond – was ordered in respect of Mr V., but, having been summoned by the investigator, Mr V. did not come to him, and his whereabouts at the present are unknown. On 4 September 1996 the preventive measure – detention – was ordered in respect of Mr V. ... Mr V. may inform his mother and brother about his whereabouts, using the postal and telegraphic correspondence.” No time-limit for the interception had been fixed in the order. 9. On 11 August 1997 the President of the Zhovtnevyy District Court approved the interception order by having signed it. The applicants maintained that they had learned about this order by chance at the end of 1998. 10. On 4 May 1998 the criminal case against Mr V. was terminated as being time-barred. 11. According to the applicants, Mr V. had appeared in summer 1998 and met with the investigator in his case. During this meeting he found out about the interception order. 12. On 28 May 1999 the PRPD investigator cancelled the interception order on the grounds that the criminal case against Mr V. had been closed and there were no further need to intercept the applicants’ correspondence. This cancellation was approved and signed by the President of the Zhovtnevyy District Court the same day. 13. By letter of 19 July 1999, the Poltava Regional Prosecutor’s Office, in reply to their complaint, informed the applicants that the interception of their correspondence had been ordered lawfully and therefore the law-enforcement officers incurred no liability. 14. On 14 November 1999, according to the Government, the whereabouts of Mr V. were established by the investigation. 15. By letter of 6 January 2000 to Mr V., in reply to his complaints about the criminal proceedings against him, the General Prosecutor’s Office (hereinafter “the GPO”) noted, inter alia, that the interception order was not well-founded. 16. By letter of 1 February 2000, the first applicant was informed that on 15 August 1997 (15 September 1997 according to the Government) a letter addressed to her had been intercepted by the police but, as it contained no information about the whereabouts of Mr V., it was not seized but was forwarded to her. 17. On 20 January 2000 the applicants claimed compensation from the Head of the PRPD for the damage caused by ordering the interception of their correspondence. 18. By letter of 27 January 2000, the Head of the PRPD informed the second applicant that the interception order had been lawful and that, therefore, there were no grounds to award damages. 19. By letter of 19 November 2000, the Head of the PRPD informed the second applicant that the seizure of correspondence had been in compliance with the law and that the applicant had no right to compensation, given that the criminal case against his brother had been terminated on non-exonerative grounds. 20. By letter of 21 November 2000, the Poltava Regional Prosecutor’s Office informed the second applicant that the issue of compensation was within the competence of the courts. 21. On 18 February 2000 the applicants lodged a claim with the Leninsky District Court of Poltava against the PDPR seeking compensation for the moral damage caused by the interference with their correspondence. In support of their claim, they referred to the letter of the GPO of 6 January 2000, where it was acknowledged that the interception order lacked grounds. 22. On 11 October 2001 the Leninsky District Court found against the applicants. The court concluded that the interception order had been lawful and well-founded, the criminal proceedings against Mr V. having been terminated on non-exonerative grounds (нереабілітуючі обставини), and that the applicants did not prove that they had suffered any moral damage due to the interference with their correspondence. The court held that the applicants’ claim was unsubstantiated and that the GPO’s letter of 6 January 2000 could not be a ground for awarding them any damages. It, therefore, rejected the applicants’ claim in full. 23. On 8 January 2002 the Appellate Court of Poltava Region upheld the decision of the first instance court. 24. On 9 February 2004 the panel of three judges of the Supreme Court rejected the applicants’ request for leave to appeal in cassation. 25. The relevant extracts of the Constitution of Ukraine (first published in the Gazette of the Verkhovna Rada of Ukraine of 23 July 1996, No. 30, article 141) read as follows: Article 31 “Everyone shall be guaranteed privacy of mail, telephone conversations, telegraph and other correspondence. Exceptions shall be established only by a court in cases envisaged by law, with the purpose of preventing crime or ascertaining the truth in the course of the investigation of a criminal case, if it is not possible to obtain information by other means.” “Human and citizens’ rights and freedoms shall be protected by the courts. Everyone shall be guaranteed a right to challenge in court the decisions, actions or omissions of bodies of State power, bodies of local self-government, officials and officers. ... Everyone shall have a right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.” Article 56 “Everyone shall have a right to compensation from public or municipal bodies for losses sustained as a result of unlawful decisions, acts or omissions by public or municipal bodies or civil servants in the performance of their official duties.” “13. The existing procedure for the arrest, custody and detention of persons suspected of committing an offence, and the procedure for carrying out an examination and search of a person’s home and other property, shall be retained for five years after the entry into force of the present Constitution.” 26. At the material time Article 187 of the Code in the wording of 16 April 1984 (the relevant Amendment Law first published in the Gazette of the Verkhovna Rada of the Ukrainian SSR, 1984, No. 18, article 351) read as follows: The interception of correspondence and its seizure in postal and telegraphic establishments “The interception of correspondence and its seizure in postal and telegraphic establishments shall be conducted with the approval of the prosecutor or his deputy, or upon the resolution of a court. The investigator shall issue an order for interception and seizure of postal and telegraphic correspondence. In that order, the investigator shall propose that a postal and telegraphic establishment intercept the correspondence defined in the order and inform him about it. The examination of correspondence shall be conducted in the presence of two representatives of the post office, and minutes are drawn up to this end. The interception of correspondence shall be cancelled by an order of the investigator, when the application of this measure is no longer required.” (This Article was substantially re-worded in June 2001) 27. The relevant provisions of the Law (first published in the official newspaper “Golos Ukrainy”, 27 March 1992, No. 56) provided as relevant: “The grounds for conduct of the search and seizure activities are: 1) presence of sufficient information, about ... - persons who are preparing or have committed a crime; - persons who are hiding from the investigative bodies, court or are evading the application of criminal sanctions; ... It is prohibited to make decisions on the conduct of search and seizure activities for other purposes than the ones established by this Article.” “Operational units when executing their tasks in connection with operational searches (...) have the following rights: 10) to survey selectively, in accordance with particular characteristics, telegraphic and postal correspondence.” Article 9 Guarantees of lawfulness during the conduct of search and seizure activities “...During the search and seizure activities violation of rights and freedoms of individuals and legal persons shall not be allowed. Any limitation of these rights and freedoms shall be of an exceptional and temporary nature ... in the situations stipulated by the legislation of Ukraine with the aim of protecting the rights and freedoms of other persons, the safety of the society... During the search and seizure activities, officers of the operational units shall be obliged to take into account their proportionality to the level of social danger of criminal attempts and the danger to the interests of the society and the State. In case of violation of rights and freedoms of individuals and legal persons ...the Ministry of Internal Affairs... shall restore the violated rights and compensate for the material and moral damage which had occurred.” 28. The relevant provisions of the Law (first published in the Gazette of the Verkhovna Rada of Ukraine of 3 January 1995, No. 1, article 1) read as follows: Article 1 “Under the provisions of this Law a citizen is entitled to compensation for damages caused by: ...3) unlawful conduct of search and seizure activities ... Article 2 “The right to compensation for damages in the amount of and in accordance with the procedure established by this Law shall arise in cases of: acquittal by a court; the termination of a criminal case on grounds of the absence of proof of the commission of a crime, the absence of corpus delicti, or a lack of evidence of the accused’s participation in the commission of the crime; the refusal to initiate criminal proceedings or the termination of criminal proceedings on the grounds stipulated in sub-paragraph 2 of paragraph 1 of this Article; the termination of proceedings for an administrative offence.” Article 3 “In the cases referred to in Article 1 of this Law the applicant shall be compensated for... 5) moral damage.” Article 4 “...Compensation for moral damage shall be given in cases in which unlawful actions of bodies of inquiry, pre-trial investigation, prosecutors and courts caused moral losses to a citizen, led to disruption of his usual life relations and required additional efforts for organisation of his or her life. The moral damage shall be considered suffering caused to a citizen due to physical or psychological influence which led to deterioration or deprivation of possibilities to follow his or her usual habits and wishes, deterioration of relations with people around, other negative impacts of moral nature.”