Obstacles to citizens’ search for justice violate the right of access to justice
JUDGMENT
Kuzmenko v. Ukraine-3-2017 (no. 49526/07)
SUMMARY
Access to court. Research investigation. Compensation. The case concerned the investigation of the applicant’s apartment by the police. The investigation was based on a court order for mobile phone theft. The authorities found in his house three mobiles belonging to himself and his family. No evidence emerged against them and was not criminal proceedings were initiated. The applicant filed an administrative appeal before the District Court, arguing that his house had been arbitrarily investigated and sought damages for the non-material damage he suffered as a result of the violation of his house. However, the Ukrainian Courts rejected his request because it had to be submitted before the criminal courts, but he was not a party to it. The ECtHR held that there had been a violation of access to a court (Article 6 (1)).
PROVISION
Article 6 par. 1
PRINCIPAL FACTS
The applicant, Anatoliy Kuzmenko, is a Ukrainian national who was born in 1974 and lives in Chernigiv (Ukraine). The case concerned the search of his flat by police.
In 2007 the Desnyanskiy District Court in Chernigiv issued a warrant to search Mr Kuzmenko’s flat for a mobile telephone, which had been reported stolen. The police searched the flat in Mr Kuzmenko’s presence, and seized three mobile telephones. According to Mr Kuzmenko the phones belonged to him and his family members, and the authorities eventually returned them to him. He maintains that neither he nor any of his family members were ever indicted or involved in any other way in the criminal proceedings giving rise to the search warrant.
Mr Kuzmenko lodged an administrative complaint with the District Court, alleging that his home had been searched arbitrarily and seeking moral damages for a breach to the inviolability of his home. However, the District Court refused to examine the case, explaining that under the Code of Criminal Procedure of Ukraine then in force, complaints concerning actions by law-enforcement authorities taken in connection with a criminal investigation had to be lodged within the relevant criminal proceedings.
Mr Kuzmenko appealed the decision. He argued that he had no status in any criminal proceedings and had not been informed about their progress. He had therefore had no meaningful opportunity to obtain redress on the basis of the criminal code, since a criminal court could only examine complaints concerning the actions of investigation authorities in the context of its examination of a criminal case. However, the Kyiv Administrative Court of Appeal rejected the appeal. Mr Kuzmenko submitted a further appeal in cassation, but this was rejected by the Higher Administrative Court of Ukraine in May 2009.
Relying in particular on Article 6 § 1 (access to court), Mr Kuzmenko complained that he had had no access to a court for the purpose of determining his claim concerning the alleged unlawfulness of the search of his flat.
THE DECISION OF THE COURT
Violation of Article 6 § 1
Just satisfaction: EUR 1,500 (non-pecuniary damage)
