The Supreme Court, as part of the panel of judges of the Cassation Administrative Court, considered case No. 817/1323/17 regarding the search of a lawyer without proper notification of the regional bar council.
The circumstances of the case
The lawyer appealed to the court with an administrative lawsuit against the Cyber Police Department of the National Police of Ukraine, the Main Directorate of the National Police in the Rivne region, etc., in which she requested:
- Recognize illegal and illegal actions of the Kostopil Police Department of the Main Directorate of the National Police in the Rivne Region and the Police Cyber Police Department of the Cyber Police Department regarding the search conducted in her residence;
- To recover property damage in the amount of 4,279 hryvnias from the state in the person of its territorial executive bodies – the Main Directorate of the National Police in the Rivne Region and the Cyber Police Department of the National Police of Ukraine in its favor and to oblige the Main Directorate of the State Treasury Service in the Rivne Region and the Main Directorate of the State Treasury services of Ukraine in the Kyiv region to pay her compensation for property damage in the amount of 4,279 hryvnias, etc.
In support of the claim, the plaintiff notes that the decision of the Kostopil District Court of the Rivne Region adopted, in particular:
– to satisfy the request of the investigator of the Kostopil police department of the State Police in the Rivne region, which was agreed with the prosecutor on conducting a search in criminal proceedings;
– to give permission to the investigator or a person authorized by him under a written mandate to conduct a search in the household at the address for the purpose of identifying objects, things, tools of a criminal offense, finding computer equipment, laptops, system units of personal computers, flash storage devices, mobile terminals (phones), seven cards of mobile operators, applications for issuing cash.
Before the start of the search, the plaintiff informed the officials that she is a lawyer, and therefore the search must be conducted in the presence of a representative of the Rivne Oblast Bar Council. In addition, the plaintiff informed the officials of the defendants that, using the right to defense and to represent her interests during the search and defense, she invited a lawyer, whose arrival she asked to wait. Despite her request, the officials of the defendants forcibly opened the front door of the house with a crowbar, at the same time significantly damaged it and began a search in the absence of the representative of the Rivne Oblast Bar Council and her lawyer. The plaintiff considers such actions of the defendants to be interference in his private, family, and professional life. The lawyer argued that the actions of the defendants' officials violated her right to defense and were disproportionate to the pursued purpose of the search.
The plaintiff also appealed to the Rivne Chamber of Commerce and Industry, where an expert assessment of the property damage caused to her by the damage to the entrance door was conducted, according to which the amount amounted to 4,279 hryvnias.
The Rivne District Administrative Court, by decision of February 9, 2018, partially satisfied the lawsuit. Recognized as illegal the actions of an official of the Main Directorate of the National Police in the Rivne region – the senior investigator of the Kostopil VP of the GUNP in the Rivne region regarding the failure to provide advance notice to the Rivne region Bar Council about conducting a search of the lawyer's home and conducting such a search without the presence of a representative of the regional bar council. Collected property damage in the amount of UAH 4,279 from the Main Directorate of the National Police in the Rivne region in favor of the lawyer. Satisfying the claim in part, the court of first instance assumed that the actions of the official of the Main Department of the National Police regarding the failure to provide advance notice to the Rivne Region Bar Council about conducting a search of the lawyer's residence and conducting such a search without the presence of a representative of the regional Bar Council are illegal.
This position was supported by the Zhytomyr Appeal Administrative Court, which, based on the result of the appellate review, left the decision of the court of first instance unchanged.
In the cassation complaint, the Main Directorate of the National Police asked to cancel their decision and adopt a new one, which would reject the lawsuit completely.
The position of the Supreme Court
The cassation administrative court noted that in cases where, at the time of a person's complaint about procedural actions taken in criminal proceedings, which according to the rules of the Criminal Procedure Code are not subject to a separate appeal and can be checked when the court considers the criminal case on its merits, the criminal proceedings are terminated on the basis of the law procedural decision, consideration of such complaints according to the rules of criminal justice becomes impossible.
Only in this case, in connection with the lack of an alternative method of legal protection for the person, in order to exercise his right under Article 13 of the ECHR, as well as taking into account the fact that in this situation, the verification of the legality of investigative actions according to another procedure cannot harm the implementation of tasks criminal proceedings, the claim must be considered by a court of administrative jurisdiction.
Given the principle of the rule of law in a democratic society, national legislation should ensure a sufficient level of access to the court in terms of the right to a trial. In order for the right of access to a court to be effective, a person must have a real opportunity to challenge an action that violates his rights (see mutatisndis decision in the case "Bellet v. France" of December 4, 1995 (" Bellet v. France ", application No. 23805/94, § 36)).
The decision of the court to grant the motion to close the proceedings in case No. 817/1323/17 was refused entirely on the grounds that the plaintiff, having the status of a lawyer, appealed to the court with an administrative lawsuit to declare illegal the actions of police officers in connection with the search of her apartment, which justified by the fact that the search was carried out without prior notification of the Bar Council of the region at the place of such procedural action, and at the same time, the plaintiff is not and was not a party to the relevant criminal proceedings, within the framework of which such a search was carried out, and during which material and moral harm was caused to her losses This position corresponds to the conclusions of the European Court of Human Rights in the case "Kuzmenko v. Ukraine" (application No. 49526/07), decision dated 03.09.2017, which became final on 06.09.2017.
In addition, taking into account the fact that on the day the plaintiff filed this lawsuit, the consideration of the criminal case against the person involved in the criminal case was already completed in order to effectively restore the violated rights of the plaintiff, the case is subject to consideration in the order of administrative proceedings.
Article 23 of the Law of Ukraine dated July 5, 2012 No. 5076-VI "On Advocacy and Advocacy" (hereinafter – Law No. 5076-VI) defines the guarantees of advocacy.
In particular, the second part of this article states that in the event of a search or inspection of the home, other possessions of the lawyer, the premises where he practices law, temporary access to the lawyer's things and documents, the investigating judge, in his decision, the court must specify the list of things , documents that are planned to be found, discovered or seized during an investigative action or the application of measures to ensure criminal proceedings, and also takes into account the requirements of clauses 2-4 of the first part of this article.
The second paragraph of this part establishes that during a search or inspection of a lawyer's home, other possessions, premises where he practices as a lawyer, temporary access to the lawyer's belongings and documents, a representative of the bar council of the region must be present, except for the cases provided for in paragraph four of this part . In order to ensure his participation, an official who will conduct a relevant investigative action or apply a measure to ensure criminal proceedings shall notify the regional bar council at the place of such procedural action in advance.
In turn, the fourth paragraph stipulates that the non-appearance of a representative of the regional bar council, provided that the regional bar council is notified in advance, does not prevent the appropriate procedural action.
In addition, in accordance with the requirements of the third part of Article 23 of Law No. 5076-VI, state authorities, local self-government bodies, their officials and employees in relations with lawyers are obliged to comply with the requirements of the Constitution of Ukraine and the laws of Ukraine, the Convention on the Protection of Human Rights and fundamental freedoms of 1950 and protocols to it, consent to the bindingness of which was given by the Verkhovna Rada of Ukraine, practices of the European Court of Human Rights.
Conclusions of the Supreme Court
Assessing the arguments of the cassation appeal, the Supreme Court, on the basis of the circumstances of the case established in this case and the cited normative regulation of disputed legal relations, proceeds from the following.
So, knowing about the fact that the residential property is owned by a person who has a certificate for the right to practice law, the official who was entrusted with the responsibility of conducting the relevant investigative action by the relevant commission, namely the senior investigator of the Kostopil Regional Police GUNP in Rivne Oblast did not take any measures regarding the advance notification of the search of the Rivne Oblast Bar Council.
The case file contains a certificate stating that another person was notified of the search by phone, compiled in an arbitrary form by the deputy chief of the Kostopil VP of the State Police in the Rivne region, a police lieutenant colonel, and attached to the files of criminal case No. 564/1038/17. The defendant also refers to the specified certificate in substantiating the requirements of the cassation appeal.
Courts of previous instances critically evaluated the specified certificate of the year as evidence of the notification of the regional bar council about the search of the lawyer's premises, since the specified certificate does not contain the time of the notification, if such was the case; made by the wrong person who was authorized to carry out the relevant investigative action; this certificate in itself is not proper and admissible evidence, since it is not supported by a printout of outgoing phone calls of the Kostopil VP GUNP in the Rivne region, or of the relevant official.
In addition, in letter No. 116, the Rivne Oblast Bar Council reported that the Bar Council had not received a notification from officials about conducting a search of the lawyer's premises.
Therefore, since the Rivne Oblast Bar Council was not notified in advance of the search that was to take place in the lawyer's residence, and the representative of such Council did not arrive at the beginning of the planned search, the specified circumstances in their totality prevented the appropriate procedural action, by virtue of the direct rule contained in in part two of Article 23 of the Law of Ukraine "On Advocacy and Advocacy".
This, in turn, gave the lawyer the right to deny access to her apartment, which she did. Therefore, the reference of the defendant to the specified reference by the Supreme Court is also rejected.
In addition, the courts established that the investigator and the officials involved in the relevant investigative action opened the entrance door to the plaintiff's apartment with a crowbar and thereby damaged it.
The amount of damage caused by door damage was determined by the authorized person at the level of 4,279 hryvnias.
The Supreme Court rejected the arguments of the defendants that the actions of officials are consistent with the requirements of part six of Article 236 of the Criminal Procedure Code of Ukraine.
Yes, this procedural rule gives the right to the investigator during the search to open closed premises, warehouses, things, if the person present during the search refuses to open them or the search is carried out in the absence of such a person, however, it applies to those cases when the relevant investigative action is carried out lawfully , when there are no legal obstacles to its implementation.
Therefore, the decision to forcibly open the front door to the lawyer's residence for a search was made by the investigator illegally and without grounds.
At the same time, the responsibility for the consequences of the relevant actions lies precisely with the senior investigator of the Kostopil VP of the GUNP in the Rivne region, since it was he who was the official authorized to carry out the relevant investigative action, and it was he who bore the burden of both the notification of the Council of Advocates and the acceptance all decisions related to the search procedure.
There is also a direct causal connection between the damages and the illegal actions of the relevant official.
Taking into account the above, the Supreme Court agrees with the conclusion of the court of first instance that the actions of the official of the Main Department of the National Police in Rivne Oblast – the senior investigator of the Kostopil Division of the GUNP in Rivne Oblast regarding the failure to provide advance notice to the Rivne Oblast Bar Council about conducting a search of the lawyer's home and conducting such a search without the presence of a representative of the bar council of the region, are illegal. Therefore, the relevant claims of the plaintiff in this regard are subject to satisfaction.
As for the plaintiff's arguments, which relate to the start of the search without a lawyer invited by the plaintiff, the court of first instance rightly rejected, as considering the fact that the plaintiff herself is a lawyer, and she had no status in the relevant criminal proceedings, and therefore did not need protection, and considering the fact that the Code of Criminal Procedure of Ukraine, in force at the time of the relevant investigative action, did not prohibit the search in the absence of a lawyer.
Regarding the violation of the search procedure, the Supreme Court states that the courts reviewed the actions of the defendants' officials only within the scope of the subject of the administrative lawsuit.
Based on the above, the courts of previous instances rightly came to the conclusion that the material damages caused to the lawyer by the damage to the door in the amount of 4,279 hryvnias are subject to recovery from the Main Directorate of the National Police in the Rivne region as from the legal entity whose employee, namely, the senior investigator of the Kostopil VP of the GUNP in the Rivne region oblast during the performance of his official duties, such damage was caused.
Therefore, the arguments of the cassation appeals do not refute the conclusions of the courts of previous instances, which are the basis of the contested court decisions, and are reduced to a reassessment of the circumstances of the case established by the courts.
Under the given legal regulation and the circumstances of the case, the Supreme Court states that the challenged court decisions are based on correctly established factual circumstances of the case, which were given a proper legal assessment with the correct application of the norms of substantive law regulating disputed legal relations, and the courts did not allow violations of the procedural rules during the consideration of the case of the law, which led or could lead to an incorrect decision of the case.
Under such legal regulation and the circumstances of the case, the conclusions of the courts of the first and appellate instances about the existence of grounds for partial satisfaction of the claims are correct.
Thus, the Court of Cassation of the Supreme Court rejected the cassation appeal of the police, and the disputed court decisions remained unchanged.
Author: Natalya Mamchenko