FIFTH SECTION

CASE OF ZOSYMOV v. UKRAINE

(Application no. 4322/06)

JUDGMENT

STRASBOURG

7 July 2016

This judgment will become final in the circumstances set out in Article 44
2 of the Convention. It may be subject to editorial revision.

ZOSYMOV v. UKRAINE JUDGMENT

In the case of Zosymov v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a
Chamber composed of:
Angelika Nuberger, President,
Ganna Yudkivska,
Khanlar Hajiyev,
Erik Mse,
Andr Potocki,
Carlo Ranzoni,
Mrti Mits, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 14 June 2016,
Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (no. 4322/06) against Ukraine
lodged with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (the Convention) by a
Ukrainian national, Mr Igor Viktorovych Zosymov (the applicant), on
21 January 2006.
2. The applicant was represented by Ms N.M. Perestyuk, a lawyer
practising in Kyiv. The Ukrainian Government (the Government) were
represented, most recently, by their acting Agent, Mrs O. Davydchuk.
3. The applicant alleged, in particular, that the police had unlawfully
searched his office, car and garage; seized his belongings and used them as
physical evidence in criminal proceedings to which he had not been party.
He also complained that the proceedings had been inordinately lengthy and
that there had been no effective remedies available to him for complaining
about the above and recovering his seized property.
4. On 2 January 2012 the application was communicated to the
Government.

THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
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

ZOSYMOV v. UKRAINE JUDGMENT

the applicants mother as their office, in which they had copying equipment
set up.
A. Criminal investigation concerning a purported breach of
copyright law
6. On 20 August 2002 several police officers from the Kyiv Economic
Crime Unit (KECU) inspected the applicants office at P. Street in his and
his wifes presence.
7. On the same date the KECU officers also inspected the applicants
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:
Deed of inspection and seizure
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 applicants family
business and the observance of copyright law in the businesss use of
software and in its replicating activities.
11. On 22 August 2002 a report was published on the Ministry of
Interiors 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 ...

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12. The report also featured a photograph of the applicants 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
applicants and his wifes 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 applicants 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
prosecutors 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 prosecutors 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.

ZOSYMOV v. UKRAINE JUDGMENT

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
applicants 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.
B. The applicants complaints and court actions against the police
1. Defamation proceedings
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.
2. Criminal complaint
27. On 22 August 2003 the prosecutors office rejected the applicants
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 applicants
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 applicants and his wifes 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.

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3. Civil proceedings with a view to recovering the seized property

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).
4. Proceedings under Article 234 of the CCP
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
investigators 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 applicants 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

ZOSYMOV v. UKRAINE JUDGMENT

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
Courts 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 applicants 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
individuals 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 applicants
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

ZOSYMOV v. UKRAINE JUDGMENT

restricted the applicants 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
applicants mother ), as well as various other procedural violations.
39. On 3 November 2004 the Kyiv prosecutors office appealed against
that decision.
40. On 24 December 2004 the Court of Appeal quashed the District
Courts 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 applicants
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 prosecutors office.
42. On 25 July 2005 Justice V.P. of the Supreme Court refused to
consider the applicants 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.
II. RELEVANT DOMESTIC LAW
A. Constitution of Ukraine 1996
43. Article 30 provides:
Article 30
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.

ZOSYMOV v. UKRAINE JUDGMENT

B. Code of Civil Procedure 1963

44. The relevant provisions of the Code of Civil Procedure 1963 in force
at the material time have been summarised in the Courts decision in the
case of Ulyanov v. Ukraine ((dec.), no. 16472/04, 5 October 2010).
C. Code of Criminal Procedure 1960 (CCP)
45. The relevant provisions of Articles 110, 177 and 178 of the CCP
have been summarised in the Courts decision in the case of Ulyanov
v. Ukraine ((dec.), cited above).
46. Other relevant provisions of the CCP read as follows:
Article 81. Resolution of issues concerning physical evidence
Issues concerning physical evidence shall be decided in the judgment, decision or
ruling of the court or ruling of the body of inquiry, the investigator, [or] the prosecutor
on the discontinuation of the case ...
Article 98. Procedure for the institution of proceedings
... In the event that by the time of the institution of the criminal case the person
who committed the offence has been identified, the proceedings should be instituted
against that person ...
Article 180. Time for carrying out of search and seizure
Searches and seizures, save for in urgent situations, shall be carried out during
daytime.
Article 234. Complaining about the actions of an investigator
The actions of an investigator can be complained about to the prosecutor ...
The actions of an investigator can be complained about to the courts.
Complaints about the actions of an investigator shall be considered by the court of
first instance during the preliminary consideration of the case or during trial, unless
otherwise envisaged by this Code.

D. Ruling of the Constitutional Court of Ukraine of 30 January 2003

47. The relevant parts of the ruling read as follows:
... [T]he institution of a criminal case against a particular person taken in breach of
the requirements of the Code of Criminal Procedure of Ukraine ... may ... cause such
damage to the constitutional rights and freedoms [of that individual] as a result of
untimely judicial supervision that their restoration becomes impossible.
Making it impossible for the court to consider complaints against a decision to
institute criminal proceedings against a particular person during the pre-trial
investigation stage, [and] postponement of their examination by the court until the
preliminary hearing of the criminal case or trial, [would] delay judicial supervision

ZOSYMOV v. UKRAINE JUDGMENT

and restrict the constitutional human right of access to justice, which is the guarantee
of all [other] rights and freedoms of a citizen.
...
Appeals to a court against the decisions of the investigator and the prosecutor to
institute criminal proceedings against a particular person shall be examined by the
court under the rules of criminal procedure. The court, [if] examining such appeals
during the pre-trial investigation stage, shall examine the existence of reasons and
grounds for taking such a decision and shall not examine and decide in advance such
matters that the court should decide during the criminal trial, as this would be in
breach of the constitutional foundations of justice.
...
The Constitutional Court holds:
...
2. To declare unconstitutional the provisions of ... Article 234 ... of the Code of
Criminal Procedure of Ukraine that make it impossible for the court to consider
appeals at the pre-trial investigation stage against the decisions of the investigator ...
concerning the reasons and grounds for and procedure concerning the institution of a
criminal case against a particular person ...

THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
48. The applicant complained that his office, car and garage had been
unlawfully and arbitrarily searched by the KECU. He relied on Article 8 of
the Convention, the relevant parts of which read as follows:
1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.

A. Admissibility
49. The Government argued that the six-month period for lodging the
present complaint had not been observed. In their view, this period had
started to run from the date of the alleged interference (20 August 2002), as
at the material time there had been no effective domestic remedies for the
applicants complaint. Among other things, there had been no effective
mechanism for the applicant in his situation to claim monetary
compensation for the polices actions.

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ZOSYMOV v. UKRAINE JUDGMENT

50. The applicant agreed that all the domestic remedies he had tried to
avail himself of had proved to be ineffective in his case. However, in his
view, it had not been obvious from the start that his efforts would be
doomed to fail. He should not therefore be reproached for attempting to
exhaust them. As regards monetary compensation, this matter had been of
secondary importance to him as his primary goal had been to obtain
recognition that the police had acted in contravention of the law and to clear
himself of any criminal accusations.
51. The Court reiterates that in accordance with Article 35 1 of the
Convention, it may only deal with a matter within a period of six months of
the final decision in the process of exhaustion of domestic remedies. If no
remedies are available or if those available are judged to be ineffective, the
six-month period in principle runs from the date of the act complained of
(see, among other authorities, Vladimir Polishchuk and Svetlana Polishchuk
v. Ukraine, no. 12451/04, 38, 30 September 2010). Where an applicant
has tried to avail himself of a remedy that the Court considers inappropriate,
the time taken to do so will not interrupt the running of the six-month time
limit and this may lead to the application being rejected as lodged out of
time (see, among other authorities, Ulyanov (dec.), cited above). However,
where an applicant avails himself of an apparently existing remedy and only
subsequently becomes aware of circumstances which render it ineffective, it
may be appropriate for the purposes of Article 35 1 to take the start of the
six-month period from the date when the applicant first became or ought to
have become aware of those circumstances (see, in particular, Varnava and
Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90,
16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, 157,
ECHR 2009; Volokhy v. Ukraine, no. 23543/02, 37, 2 November 2006;
and Ratushna v. Ukraine, no. 17318/06, 62, 2 December 2010).
52. Turning to the facts of the present case, the Court observes that the
application was lodged in 2006, whereas the alleged violation of the
applicants rights under Article 8 of the Convention took place in 2002.
53. The applicant took a number of steps attempting to obtain redress at
the domestic level. For instance, his allegations, which served as the basis
for his complaint under Article 8 of the Convention in the proceedings
before it, were accepted for examination by the domestic courts on the basis
of Article 234 of the then current legislation, the Code of Criminal
Procedure 1960. Having regard to the conflicting views expressed by the
domestic courts in examining that complaint, and especially, to the positions
taken by the Supreme Court in its ruling of 13 July 2004 and the District
Court in its decision of 14 October 2004 (see paragraphs 37 and 38 above),
the Court cannot conclude that the applicant had attempted to use a remedy
which was obviously ineffective (compare and contrast with Ulyanov (dec.),
cited above).

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11

54. The Court also notes that the above-mentioned proceedings could
potentially lead to the revocation of the decision to institute criminal
proceedings, in which the applicant considered himself to be a de facto
suspect, and acknowledgment that his rights had been breached, which is an
essential element of redress within the meaning of Article 35 of the
Convention (see, mutatis mutandis, Centro Europa 7 S.r.l. and Di Stefano
v. Italy [GC], no. 38433/09, 83 and 88, ECHR 2012). In view of this, and
regard being had to the actual outcome of those proceedings, the Court does
not consider it necessary to address the Governments argument concerning
the alleged inability for the applicant to obtain monetary compensation in
these or any other domestic proceedings.
55. Consequently, the Court finds that the applicant can be regarded as
having legitimately raised the matter under Article 8 at the domestic level
and that those procedural steps should not be held against him when
deciding the question of the admissibility of the relevant Convention
complaint. The present application was lodged on 21 January 2006, that is,
within six months of the termination of the relevant domestic proceedings
on 25 July 2006 (see paragraph 42 above). The Court therefore rejects the
Governments objection concerning non-compliance with the six-month
rule.
56. The Court next notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 3 (a) of the Convention. It further
considers that it is not inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
57. In his application to the Court, the applicant alleged that the police
had searched his office, car and garage without any legal basis for doing so.
58. The Government did not provide any observations on the merits of
the present complaint.
59. The Court notes that the relevant deeds documenting the polices
presence in the applicants office, car and garage refer to this presence as
inspection rather than search (see paragraph 8 above). It considers that
whatever was the domestic qualification of the disputed action, for the
purposes of the Convention it amounted to interference with the
applicants right to respect for his home (see, in particular, Niemietz
v. Germany, 16 December 1992, 30, Series A no. 251-B; and
Panteleyenko v. Ukraine, no. 11901/02, 47, 29 June 2006 as regards the
applicability of Article 8 to searches of non-residential premises and,
mutatis mutandis, Belousov v. Ukraine, no. 4494/07, 102 and 105-107,
7 November 2013 classifying an inspection under domestic law as
interference within the meaning of Article 8).

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ZOSYMOV v. UKRAINE JUDGMENT

60. The next question is whether the interference complained of was

justified under Article 8 2. In this connection, the Court reiterates that in
order to comply with Article 8 2, the interference must, among other
things, be in accordance with the law; that is, it should have some basis in
domestic law and be compatible with the rule of law (see, among other
authorities, Marper v. the United Kingdom [GC], nos. 30562/04
and 30566/04, 95, ECHR 2008, and Belousov, cited above, 104). In
matters affecting fundamental rights, it would be contrary to the rule of law
for the legal discretion granted to the executive to be expressed in terms of
an unfettered power. Consequently, the law must indicate with sufficient
clarity the scope of any such discretion conferred on the competent
authorities and the manner of its exercise (see, among other authorities,
Gillan and Quinton v. the United Kingdom, no. 4158/05, 77, ECHR 2010
(extracts), with further references). The existence of specific procedural
safeguards is material in this context. What is required by way of safeguard
will depend, to some extent at least, on the nature and extent of the
interference in question (see P.G. and J.H. v. the United Kingdom,
no. 44787/98, 46, ECHR 2001-IX). In various contexts of Article 8 of the
Convention, the Court has emphasised that measures affecting human rights
must be subject to some form of adversarial proceedings before an
independent body competent to review in a timely fashion the reasons for
the decision and the relevant evidence (see, as a recent authority, Kotiy
v. Ukraine, no. 28718/09, 68, 5 March 2015).
61. Turning to the facts of the present case, the Court notes that it
follows from the case file that the police visit complained of had not been
subject to prior authorisation by any independent judicial authority. The
only relevant document obtained by the applicant from the police in
justification of the visit the deed of inspection and seizure did not
refer to any legal provisions serving as a basis for the visit and determining
the scope of the powers of the officers involved (see paragraph 8 above).
The applicants efforts to obtain subsequent judicial review of the
lawfulness of the measure were unsuccessful. In particular, as follows from
the judgment of 24 December 2004 taken by the Court of Appeal, the
relevant complaint could only be brought within the framework of the
criminal trial of the case initiated by the police following the disputed visit,
in the event that the investigative authority ever brought the case to that
stage. In the meantime, by the time the applicant lodged the present
application, the relevant criminal proceedings had remained stagnant for
several years, and the applicant had not been able to obtain any procedural
status in these proceedings, in spite of his numerous efforts. The Court notes
that in its recent judgment in the case of Kotiy (cited above, 69-70) it has
already found that a situation where the only possibility for the applicant to
challenge the investigators conduct had been under Article 234 of the CCP

ZOSYMOV v. UKRAINE JUDGMENT

13

(after the criminal case against him had been committed for trial) was
incompatible with Article 8.
62. The Court considers its findings in Kotiy equally pertinent in the
present case. In particular, it concludes that domestic law did not provide
requisite guarantees against arbitrariness in respect of the polices actions
complained of and did not meet the requirement of quality of law for the
purposes of the Convention. Accordingly, the interference in question was
not in accordance with the law as required by Article 8 2 of the
Convention.
63. These findings are sufficient for the Court to conclude that there has
been a breach of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
64. The applicant further complained that his property had been
unlawfully seized and retained by the police. He relied on Article 1 of
Protocol No. 1 to the Convention, the relevant parts of which read as
follows:
Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the public interest
and subject to the conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair the right of a State
to enforce such laws as it deems necessary to control the use of property in
accordance with the general interest or to secure the payment of taxes or other
contributions or penalties.

A. Admissibility
65. The Government alleged that the applicant had not exhausted the
available domestic remedies. Referring to the Courts inadmissibility
decision in the case of Solaz v. Ukraine (no. 35184/02, 12 June 2006), they
noted that his complaint was premature as the criminal proceedings in
which the disputed property had been retained were pending. Accordingly,
the question of returning the seized possessions to the applicant had to be
decided in compliance with Article 81 of the CCP, upon the resolution of
the relevant criminal case.
66. The applicant submitted that the Solaz case could be distinguished
from his on a number of grounds. In particular, in his case the proceedings
had been stagnant for years. The police had not been interested in
identifying any defendants, and it had been impossible for him to obtain any
procedural status in the proceedings. Moreover, there were no reasonable
prospects that the proceedings would ever be either brought to court or
terminated by the investigative authority.

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ZOSYMOV v. UKRAINE JUDGMENT

67. In the Courts view, the question of exhaustion of domestic remedies

is closely linked to the merits of the applicants complaint under Article 13
of the Convention that he lacked effective remedies in respect of the alleged
interference with his property rights (see East West Alliance Limited
v. Ukraine, no. 19336/04, 148, 23 January 2014). Accordingly, it holds
that the question of exhaustion of domestic remedies should be joined to the
merits of the applicants relevant complaint under Article 13 (see
paragraphs 93-97 below).
68. The Court next notes that the present complaint is not otherwise
manifestly ill-founded within the meaning of Article 35 3 (a) of the
Convention. It further considers that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
69. In his application form, the applicant complained that his computer
equipment, data storage devices and other possessions (see paragraph 8 for
more details) had been arbitrarily seized and retained by the police as
physical evidence in artificially initiated criminal proceedings, which had
not been intended to be brought to trial.
70. The Government did not provide any comments on the merits of the
applicants complaints.
71. The Court notes that it is not disputed in the present case that the
items seized by the police from the applicants office, car and garage and
joined as physical evidence to the criminal proceedings constituted his
possessions for the purposes of Article 1 of Protocol No. 1.
72. The Court considers that the impugned measures constituted an
interference falling within the scope of the second paragraph of Article 1 of
Protocol No. 1 concerning control of the use of property (see, for
example, Plakhteyev and Plakhteyeva v. Ukraine, no. 20347/03, 53,
12 March 2009, and East West Alliance Limited, cited above, 185).
73. In this connection, the Court reiterates that the first and most
important requirement of Article 1 of Protocol No. 1 is that any interference
by a public authority with the peaceful enjoyment of possessions should be
lawful (see Iatridis v. Greece [GC], no. 31107/96, 58, ECHR 1999-II).
The requirement of lawfulness for the purposes of Article 1 of Protocol
No. 1, like for the purposes of Article 8 discussed above, presupposes
compliance with the relevant provisions of domestic law and compatibility
with the rule of law, which includes freedom from arbitrariness (see, among
other authorities, Smirnov v. Russia, no. 71362/01, 55-56, 7 June 2007,
and Koval and Others v. Ukraine, no. 22429/05, 125, 15 November 2012).
74. The Court notes that the case file contains no documents on the basis
of which the exact legal basis for the seizure of the applicants possessions
can be established. It finds that the considerations advanced above (see

ZOSYMOV v. UKRAINE JUDGMENT

15

paragraph 61) which have led the Court to the conclusion that the
inspection of the applicants office, car and garage had been unlawful within
the meaning of Article 8 are equally pertinent to the complaint at issue.
Accordingly, it considers that the seizure of the applicants belongings was
unlawful for the purposes of Article 1 of Protocol No. 1.
75. As regards the subsequent retention of the seized possessions by the
police as physical evidence in the criminal proceedings, it appears from the
case file that the measure was provided for by Article 81 of the CCP (see
paragraph 46 above).
76. In various earlier cases, the Court has found that the retention of
property as physical evidence in criminal proceedings may be necessary in
the interests of the proper administration of justice, which is a legitimate
aim in the general interest of the community (see Smirnov, cited above,
57, and East West Alliance Limited, cited above, 188). At the same time,
there must also be a reasonable relation of proportionality between the
means employed and the aim sought to be realised by any measures applied
by the State, including those designed to control the use of the individuals
property. That requirement is expressed by the notion of a fair balance
that must be struck between the demands of the general interest of the
community and the requirements of the protection of the individuals
fundamental rights (see, for example, Edwards v. Malta, no. 17647/04, 69,
24 October 2006, with further references and Smirnov, cited above).
77. From the material available, it appears that the only way for the
applicant to reclaim his possessions was to await the outcome of the
criminal proceedings in which they remained retained and which, in effect,
had been dormant without any prospects of progress for over four years by
the date the present application was lodged with the Court. Domestic law, as
interpreted by the competent judicial authorities, did not provide the
applicant with any remedies for challenging the need for that retention,
either initially (for instance, the retention of large quantities of blank optical
discs) or after a lapse of time (for instance, on the grounds that the
proceedings had stagnated and no investigative activities had been carried
out with the retained items).
78. In sum, regard being had to the considerations advanced in
paragraphs 74 and 77 above, the Court finds that the applicant could not
subject the seizure and continued retention of his property to the scrutiny of
an independent authority with a view to assessing their lawfulness and
proportionality in a timely manner and affording him the requisite
procedural safeguards.
79. Accordingly, Article 1 of Protocol No. 1 has been breached in the
present case.

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ZOSYMOV v. UKRAINE JUDGMENT

III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

(CRIMINAL LIMB)
80. The applicant also complained that the criminal proceedings
instituted following the polices visit to his office, car and garage had been
inordinately lengthy. He referred to Article 6 of the Convention, which
reads as follows:
In the determination of his civil rights and obligations or any criminal charge
against him, everyone is entitled to a ... hearing within a reasonable time by [a] ...
tribunal ...

81. The Government alleged that this complaint was inadmissible

ratione personae, as the applicant had no standing in the proceedings at
issue.
82. The applicant disagreed. In his view, he had been a de facto suspect
in the proceedings and charges against him could have been pressed at any
moment.
83. The Court reiterates that in criminal matters, the reasonable time
referred to in Article 6 normally begins to run as soon as a person is
charged (see, for example, Eckle v. Germany, 15 July 1982, 73,
Series A). Charge, for the purposes of Article 6, may be defined as the
official notification given to an individual by the competent authority of an
allegation that he has committed a criminal offence, a definition that also
corresponds to the test whether the situation of the [suspect] has been
substantially affected (see Deweer v. Belgium, 27 February 1980, 46,
Series A no. 35; and Eckle, cited above). In some contexts, having regard to
the material circumstances affecting an applicants standing in the
proceedings, the Court has already found that an applicant acquired the
status of a suspect for Convention purposes before this status had been
formally assigned in accordance with domestic law (see, for example,
Brusco v. France, no. 1466/07, 47-50, 14 October 2010).
84. Turning to the facts of the present case, the Court notes that the
proceedings complained about started in 2002. From the material available,
it follows that the applicant was interviewed by the police on some
unspecified occasions and was once referred to as a suspect in a search
warrant (see paragraphs 15-17 above). However, by the time the application
was lodged in January 2006, no formal charges had been pressed against
him after the proceedings had been formally pending for a period exceeding
four years. Furthermore, by that time the authorities had explicitly stated on
a number of occasions that there were no sufficient grounds for suspecting
the applicant of having committed any offence (see paragraphs 19-21). As
of March 2006 no investigative measures concerning the applicant had been
ordered (see paragraph 22). In their subsequent correspondence, the parties
never informed the Court of any further developments in those proceedings
(see paragraph 23 above). Based on the materials presented to it, the Court

ZOSYMOV v. UKRAINE JUDGMENT

17

cannot conclude that the manner, in which the disputed proceedings affected
the applicant, made his personal situation comparable to that of a suspect in
criminal proceedings.
85. Accordingly, in the Courts view, this complaint should be rejected
as manifestly ill-founded within the meaning of Article 35 3(a) of the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
86. The applicant also alleged that the police had purposefully delayed
the criminal proceedings to cover up the unlawful search, seizure and
retention of his property and that there had been no way for him to obtain
redress for this situation. In this connection, he referred to Article 6 1 and
Article 13 of the Convention. Article 13 reads as follows:
Everyone whose rights and freedoms as set forth in [the] Convention are violated
shall have an effective remedy before a national authority notwithstanding that the
violation has been committed by persons acting in an official capacity.

87. The Government maintained that Article 6 under its civil limb was
inapplicable to the criminal proceedings at issue.
88. The applicant disagreed.
89. The Court notes that the applicant was not party to the proceedings
complained of. His only argument under the civil limb of Article 6
concerned his inability to reclaim his property as long as the proceedings at
issue were pending. In these circumstances, the Court, being master of
characterisation to be given in law to the facts of the case, considers that the
present complaint falls to be examined solely under Article 13 of the
Convention.
A. Admissibility
90. The Court observes that Article 13 has been consistently interpreted
in its case-law as requiring a remedy in domestic law only in respect of
grievances which can be regarded as arguable in terms of the Convention
(see, as a classic reference, Boyle and Rice v. the United Kingdom,
27 April 1988, 54, Series A no. 131).
91. In view of the considerations expressed in paragraphs 85 and 89
above, the Court notes that the guarantees of Article 13 are inapplicable to
the applicants complaint under Article 6 concerning the length of
proceedings.
92. At the same time, regard being had to the Courts findings in
paragraphs 56 and 68 above that the applicant had made out arguable claims
under Article 8 of the Convention and Article 1 of Protocol No. 1, it finds

18

ZOSYMOV v. UKRAINE JUDGMENT

that his complaint under Article 13 must be declared admissible in respect

of these two provisions.
B. Merits
93. The Court reiterates that Article 13 of the Convention guarantees the
availability, at national level, of a remedy to enforce the substance of
Convention rights and freedoms in whatever form they might happen to be
secured in the domestic legal order. The effect of Article 13 is thus to
require the provision of a domestic remedy to deal with the substance of an
arguable complaint under the Convention and to grant appropriate relief.
The scope of the obligation under Article 13 varies depending on the nature
of the applicants substantive complaint under the Convention.
Nevertheless, the remedy required by Article 13 must be effective in
practice as well as in law; in particular, its exercise must not be unjustifiably
hindered by the actions or omissions of the authorities of the respondent
State (see, among other authorities, Kuda v. Poland [GC], no. 30210/96,
157, ECHR 2000-XI and East West Alliance Limited, cited above, 227).
94. The Court refers to paragraphs 61-63, 74 and 77-78 above, in which
it has already found that domestic law, as interpreted by the competent
courts, did not contain any procedural safeguards enabling the applicant to
challenge the actions of the police which, in his view, violated his rights
under Article 8 of the Convention and Article 1 of Protocol No. 1. In so far
as the Government contended that the applicant should have awaited the
outcome of the criminal proceedings initiated after the police visit to his
office, car and garage, the Court reiterates that from the material available,
it appears that the proceedings had been stagnant for over four years by the
date the application was lodged.
95. In the Courts view, the foregoing considerations are sufficient to
conclude that the applicant had no effective domestic remedies available to
him in connection with his complaints under Article 8 of the Convention
and Article 1 of Protocol No. 1.
96. Accordingly, there has been a breach of Article 13 of the
Convention.
97. In this connection, the Court dismisses the Governments objection
regarding the admissibility of the applicant companys complaint under
Article 1 of Protocol No. 1 based on the non-exhaustion of domestic
remedies, which was previously joined to the merits of its complaint under
Article 13 of the Convention (see paragraph 67 above).
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
98. The applicant also complained under Articles 8 and 13 of the
Convention that the publication on the Ministry of Interiors website (see

ZOSYMOV v. UKRAINE JUDGMENT

19

paragraph 11 above) had been defamatory. He also cited Article 14 of the

Convention and Article 2 of Protocol No. 7, referring to the facts of the
present case.
99. Having examined these complaints in the light of all the material
before it, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the provisions on which the
applicant relied.
100. It follows that this part of the application is manifestly ill-founded
and must be rejected under Article 35 3 (a) and 4 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
101. Article 41 of the Convention provides:
If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.

A. Damage
102. The applicant claimed 34,794 euros (EUR) as the estimated market
value of his seized possessions and EUR 11,659 as his estimated loss of
profits in 2002 by way of pecuniary damage. In addition, he also claimed
EUR 150,000 in non-pecuniary damage.
103. The Government submitted that the applicants claims were
exorbitant and unsubstantiated and that there had been no causal link
between the breaches complained of and the damages claimed.
104. The Court finds that the applicant did not duly substantiate his
calculations concerning the value of his seized assets or loss of profit, which
would have enabled it to make conclusions as to the relevant amounts.
Moreover, it was neither argued nor shown in the case material that the
seized property has become unrecoverable. In fact, after lodging the present
application in 2006, the applicant, who was represented by a lawyer, never
updated the Court on the progress of the pertinent criminal proceedings or
the further fate of the property retained in them as evidence. Accordingly,
the Court considers that his claims concerning pecuniary damage must be
rejected as speculative.
105. At the same time, ruling on an equitable basis, the Court awards the
applicant EUR 6,000 in respect of non-pecuniary damage.

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ZOSYMOV v. UKRAINE JUDGMENT

B. Costs and expenses

106. The applicant also claimed EUR 1,000 for the legal fees allegedly
owed by him to his counsel, Ms N.M. Perestyuk, in accordance with a
verbal contract for his representation before the Court, concluded between
the parties in 2006.
107. The Government submitted that this claim was wholly
unsubstantiated, as it was not supported by any documents.
108. According to the Courts case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are reasonable as
to quantum. In the present case, regard being had to the applicants failure
to provide any documents in support of his claim, the Court dismisses it in
full.
C. Default interest
109. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the Governments objection as to the exhaustion of
domestic remedies in respect of the applicants complaint under
Article 1 of Protocol No. 1 to the merits of his complaint under
Article 13 of the Convention, and dismisses it having examined the
merits of that complaint;
2. Declares the complaints concerning the allegedly unlawful search
(inspection) of the applicants office, car and garage; the seizure and
retention by the police of his possessions; and his inability to make his
relevant complaints admissible, and the remainder of the application
inadmissible;
3. Holds that there has been a violation of Article 8 of the Convention;
4. Holds that there has been a violation of Article 1 of Protocol No. 1;
5. Holds that there has been a violation of Article 13 of the Convention on
account of the absence of effective domestic remedies for the applicants

ZOSYMOV v. UKRAINE JUDGMENT

21

complaints under Article 8 of the Convention and Article 1 of

Protocol No. 1;
6. Holds
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 2 of the Convention, EUR 6,000 (six thousand euros), to be
converted into the currency of the respondent State at the rate applicable
at the date of settlement, plus any tax that may be chargeable, in respect
of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a rate
equal to the marginal lending rate of the European Central Bank during
the default period plus three percentage points;
7. Dismisses the remainder of the applicants claim for just satisfaction.
Done in English, and notified in writing on 7 July 2016, pursuant to
Rule 77 2 and 3 of the Rules of Court.

Claudia Westerdiek
Registrar

Angelika Nuberger
President