FIFTH SECTION
\nCASE OF NEDILENKO AND OTHERS v. UKRAINE
\n(Application no. 43104\/04)<\/p>\n
JUDGMENT
\nThis version was rectified on 7 February 2018 under Rule 81 of the Rules of Court
\nSTRASBOURG
\n18 January 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Nedilenko and Others v. Ukraine,<\/strong><\/p>\n The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:<\/p>\n Andr\u00e9 Potocki, President, Having deliberated in private on 12 December 2017,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no.\u00a043104\/04) against Ukraine lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by three Ukrainian nationals, Mr\u00a0Mykola\u00a0Vasylyovych\u00a0Nedilenko, Mrs\u00a0Oksana VasylivnaZagarovska and Mrs\u00a0MariyaVolodymyrivna\u00a0Pylypchuk (\u201cthe applicants\u201d), on 25 November 2004.<\/p>\n 2.\u00a0\u00a0The applicants, who had been granted legal aid, were represented by Mr\u00a0M[1].\u00a0Tarakhkalo and Ms\u00a0O.\u00a0Protsenko, lawyers practising in Kyiv. The Ukrainian Government (\u201cthe Government\u201d) were represented by their Agents, most recently, Mr\u00a0I.\u00a0Lishchyna from the Ministry of Justice.<\/p>\n 3.\u00a0\u00a0The applicants complained, in particular, about allegedly arbitrary and unreasonable searches of their flats and a lack of effective remedies in respect of their complaints. The first applicant also complained about the allegedly unlawful and unreasonable seizure and retention of his belongings, a lack of effective remedies in respect of that complaint and of the lengthy non-enforcement of a court judgment in his favour.<\/p>\n 4.\u00a0\u00a0On 24\u00a0February\u00a02016 the aforementioned complaints were communicated to the Government and the remainder of the application was declared inadmissiblepursuant to Rule 54\u00a0\u00a7\u00a03 of the Rules of Court.<\/p>\n 5.\u00a0\u00a0The Government objected to the examination of the application by a Committee. After having considered the Government\u2019s objection, the Court rejects it.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 6.\u00a0\u00a0The applicants were born in 1956, 1962 and 1974 respectively. They reside in Ivano-Frankivsk. The first and second applicants are spouses.<\/p>\n A.\u00a0\u00a0Criminal proceedings against the first applicant<\/strong><\/p>\n 7.\u00a0\u00a0In March\u00a02001 criminal proceedings were instituted on suspicion that the first applicant, at the material time chairman of a local branch of a private bank, had abused his authority, forged official documents and acted negligently in concluding loan agreements, resulting in damage to the bank.<\/p>\n 8.\u00a0\u00a0On 20\u00a0March\u00a02001 a police investigator ordered a search of the second applicant\u2019s flat, where the first and second applicant resided at the time, and a search of the first applicant\u2019s flat, where the third applicant was living temporarily with her daughter, a minor.<\/p>\n 9.\u00a0\u00a0On the same date the search orders were approved by the Ivano\u2011Frankivskregional prosecutor.<\/p>\n 10.\u00a0\u00a0Between 6\u00a0p.m. and 9\u00a0p.m. on 21\u00a0March\u00a02001 searches of the two flats were carried out. Twelve suits and twelve bottles of perfume belonging to the first applicant were seized from the second applicant\u2019s flat. In addition, various personal and financial papers and bank deposit certificates belonging to the first applicant were seized from both flats.<\/p>\n 11.\u00a0\u00a0In December\u00a02001 several bottles of perfume were restored to the first applicant.<\/p>\n 12.\u00a0\u00a0On an unspecified date several suits, some of which were damaged, were also restored to him.<\/p>\n 13.\u00a0\u00a0The applicants unsuccessfully complained on numerous occasions to the prosecution authorities about the allegedly arbitrary searches of their flats and the seizure and continued retention of the first applicant\u2019s property. They also lodged similar complaints with the court handling the first applicant\u2019s criminal proceedings.<\/p>\n 14.\u00a0\u00a0On 6\u00a0February\u00a02004 the Ivano-Frankivsk Court of Appeal (\u201cthe Court of Appeal\u201d) found the first applicant guilty of one count of forgery and acquitted him of all the other charges. By the same decision, the first applicant was sentenced to a fine of 600\u00a0Ukrainian hryvnias (UAH) and dispensed from paying it because the proceedings had become time-barred.<\/p>\n 15.\u00a0\u00a0In a cassation appeal, the first applicant again complained, in particular, about the searches and the seizure and retention of his belongings, which, according to him, had been arbitrary.<\/p>\n 16.\u00a0\u00a0On 8\u00a0June\u00a02004 the Supreme Court of Ukraine upheld the judgment of 6\u00a0February\u00a02004 and it became final. The first applicant\u2019s complaints about the searches, seizure and retention of his belongings were not taken up in the ruling.<\/p>\n B.\u00a0\u00a0Compensation proceedings<\/strong><\/p>\n 17.\u00a0\u00a0On\u00a021\u00a0July\u00a02004 the applicants instituted civil proceedings in the Ivano-Frankivsk Town Court (\u201cTown Court\u201d) against the State of Ukraine and its various agencies, claiming compensation for the damage allegedly inflicted to them in the course of the criminal proceedings against the first applicant. They referred to the Compensation Act of 1994 and the Civil Code provisions on tort law.<\/p>\n 18.\u00a0\u00a0In 2006 the applicants\u2019 cases were severed into three separate sets of proceedings.<\/p>\n 1.\u00a0\u00a0The first applicant\u2019s case<\/em><\/p>\n 19.\u00a0\u00a0The first applicant complained, in particular, that his personal belongings (perfume, suits and documents) had been seized unlawfully following arbitrary searches. He also complained that some items had been returned to him in a damaged state, while others had either been lost or had been retained by the police without any justification. Accordingly, the applicant demanded the restitution of his belongings retained by the police and compensation for the pecuniary and non-pecuniary damage resulting from the searches, seizures, lengthy retention and loss of property.<\/p>\n 20.\u00a0\u00a0On 26\u00a0December\u00a02008 the Town Court dismissed the first applicant\u2019s claims. It noted, in particular, that as he had been lawfully convicted there was no legal basis for the State to pay him compensation in connection with the criminal proceedings against him.<\/p>\n 21.\u00a0\u00a0On 20\u00a0May\u00a02009 the Ivano-Frankivsk Regional Court of Appeal quashed that judgment to the extent that it related to the restitution of the belongings retained by the police and compensation for the loss and deterioration of some of the seized items. The court noted in that respect that while the first applicant\u2019s conviction precluded it from considering the case under the 1994 Compensation Act, his claims for damage to the seized property had been substantiated in accordance with the Civil Code. The Court of Appeal found that the police\u2019s arrangements for the storage of the seized items had been inadequate and that the continued storage of some of them had been devoid of a legal basis. The police were ordered to restore the retained items to the first applicant and to pay him UAH\u00a03,750\u00a0(around 360\u00a0euros (EUR)) in pecuniary damage in connection with the loss, deterioration, and lengthy retention of some of them. In addition, the first applicant was awarded UAH\u00a03,500 (around EUR\u00a0330) in respect of non-pecuniary damage.<\/p>\n 22.\u00a0\u00a0The first applicant appealed in cassation, complaining, in particular, that the question of a justification for the initial searches, seizure and retention of his belongings by the police had been left out of the judicial review.<\/p>\n 23.\u00a0\u00a0On 17\u00a0February 2010 the Supreme Court upheld the ruling by the Court of Appeal and it became final.<\/p>\n 24.\u00a0\u00a0Subsequently, the first applicant attempted to institute further proceedings claiming a higher amount of compensation, however, they were of no avail.<\/p>\n 2.\u00a0\u00a0The second applicant\u2019s case<\/em><\/p>\n 25.\u00a0\u00a0The second applicant complained, in particular, that the police had unlawfully searched her flat.<\/p>\n 26.\u00a0\u00a0On 12\u00a0March\u00a02008 the Town Court dismissed her complaints. It found that the second applicant had no standing to lodge the above claims, either under the 1994 Compensation Act or the Civil Code, as she had had no procedural standing in the criminal proceedings within the framework of which the disputed searches and seizures had been carried out.<\/p>\n 27.\u00a0\u00a0On\u00a027\u00a0May\u00a02008 the Ivano-Frankivsk Regional Court of Appeal upheld that judgment.<\/p>\n 28.\u00a0\u00a0On 18\u00a0August\u00a02008 the Supreme Court dismissed a cassation appeal by the second applicant.<\/p>\n 3.\u00a0\u00a0The third applicant\u2019s case<\/em><\/p>\n 29.\u00a0\u00a0The third applicant alleged, in particular, that the flat where she lived at the material time had been arbitrarily searched.<\/p>\n 30.\u00a0\u00a0On 6\u00a0March\u00a02008 the Town Court discontinued proceedings, finding that the complaints should be lodged before the administrative courts.<\/p>\n 31.\u00a0\u00a0On 15\u00a0April\u00a02008 the Court of Appeal upheld that decision.<\/p>\n 32.\u00a0\u00a0On\u00a023\u00a0February\u00a02009 the Supreme Court of Ukraine dismissed a cassation appeal by the third applicant.<\/p>\n C.\u00a0\u00a0Civil proceedings against the Ivano-Frankivsk State Auditing Department<\/strong><\/p>\n 33.\u00a0\u00a0On 23\u00a0June\u00a02005 the Town Court awarded the first applicant UAH\u00a020,000 from the Ivano-Frankivsk State Auditing Department in connection with irregularities in their reports on the first applicant\u2019s work.<\/p>\n 34.\u00a0\u00a0On 16\u00a0December\u00a02005 the Court of Appeal upheld that decision.<\/p>\n 35.\u00a0\u00a0On 31\u00a0January\u00a02006 the Supreme Court, following a cassation appeal by the Auditing Department, stayed enforcement proceedings.<\/p>\n 36.\u00a0\u00a0On 7\u00a0November\u00a02007 the Department\u2019s cassation appeal was dismissed and the judgment of 23\u00a0June\u00a02005 became final.<\/p>\n 37.\u00a0\u00a0The judgment award was paid to the first applicant in full by 24\u00a0April\u00a02008.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n A.\u00a0\u00a0Constitution of Ukraine, 1996<\/strong><\/p>\n 38.\u00a0\u00a0The relevant provisions of the Constitution read as follows:<\/p>\n Article 30<\/p>\n \u201cEveryone is guaranteed the inviolability of his or her home.<\/p>\n Entry into a home or other possessions of a person, and the examination or search thereof, shall not be permitted, other than pursuant to a reasoned court decision.<\/p>\n In urgent cases related to the preservation of human life and property or to the direct pursuit of persons suspected of committing a crime, another procedure established by law is possible for entry into a home or other possessions of a person, and for the examination and search thereof.\u201d<\/p>\n Chapter XV \u201c13.\u00a0\u00a0The 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\u2019s home and other property, shall be retained for five years after the entry into force of the present Constitution.\u201d<\/p>\n B.\u00a0\u00a0Code of Criminal Procedure of 28 December 1960 (as worded at the material time)<\/strong><\/p>\n 39.\u00a0\u00a0The relevant extracts of the Code provided as follows:<\/p>\n Article\u00a0177.\u00a0\u00a0Grounds for searches<\/p>\n \u201cA search shall be carried out by an investigator in the event of his having sufficient information indicating that instruments used for committing a crime, objects and valuables acquired as a result of criminal activity, as well as other objects and documents which are relevant to the establishment of the facts of a case, are hidden in a particular location or place or on some person. …<\/p>\n A search may be carried out upon the order of the investigator and only after authorisation by the prosecutor or his deputy …\u201d<\/p>\n 40.\u00a0\u00a0On 21\u00a0June\u00a02001 the above provision was modified, in particular by including a requirement for prior judicial authorisation for a search and seizure operation in residential premises, in line with Article\u00a030 of the 1996 Constitution.<\/p>\n C.\u00a0\u00a0Act on the procedure for compensation for damage caused to citizens by the unlawful acts of bodies of inquiry, pre-trial investigation authorities, prosecutor\u2019s offices and courts of 1\u00a0December\u00a01994 (\u201cthe 1994 Compensation Act\u201d)<\/strong><\/p>\n 41.\u00a0\u00a0Under section\u00a01 of the Act as worded at the material time, a person was entitled to compensation for damage caused, in particular, by an unlawful search or seizure operation.<\/p>\n 42.\u00a0\u00a0Section\u00a02 listed the cases in which the right to compensation arose. They included the following: an acquittal; a judgment on the merits of a criminal case or another judicial decision acknowledging, in particular, that a search or seizure had been unlawful; or a discontinuation of criminal proceedings on the grounds of a lack of corpus delicti or of proof of guilt.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION<\/p>\n 43.\u00a0\u00a0The first applicant complained about the lengthy non-enforcement of the court judgment of 23\u00a0June\u00a02005 in his favour. He referred to Article\u00a06 of the Convention, which, insofar as relevant, reads as follows:<\/p>\n \u201cIn the determination of his civil rights and obligations … everyone is entitled to a … hearing within a reasonable time by [a] … tribunal …\u201d<\/p>\n 44.\u00a0\u00a0The Government did not comment on that complaint.<\/p>\n 45.\u00a0\u00a0The Court reiterates that an unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see, among many other authorities, Yuriy Nikolayevich Ivanov v. Ukraine, no.\u00a040450\/04, \u00a7\u00a053, 15\u00a0October\u00a02009).<\/p>\n 46.\u00a0\u00a0Turning to the facts of the present case, the Court observes that the judgment of 23\u00a0June\u00a02005 against the Ivano-Frankivsk State Auditing Department awarding the first applicant UAH\u00a020,000 became final on 7\u00a0November\u00a02007. Enforcement proceedings were started initially after the judgment at issue had been upheld on appeal, but they were stayed after the Auditing Department lodged a cassation appeal. Eventually, the judgment at issue was enforced by 24\u00a0April\u00a02008, that is, within five and a half months of it becoming final.<\/p>\n 47.\u00a0\u00a0The Court considers that this period does not raise an issue under the Convention.<\/p>\n 48.\u00a0\u00a0Accordingly, this complaint must be rejected as manifestly ill\u2011founded within the meaning of Article\u00a035\u00a0\u00a7\u00a03(a) of the Convention.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION<\/p>\n 49.\u00a0\u00a0The applicants complained that their residences had been arbitrarily searched, in breach of Article\u00a08 of the Convention, which reads as follows:<\/p>\n \u201c1.\u00a0\u00a0Everyone has the right to respect for his private and family life, his home and his correspondence.<\/p>\n 2.\u00a0\u00a0There 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.\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 1.\u00a0\u00a0Submissions by the parties<\/em><\/p>\n 50.\u00a0\u00a0The Government argued that the six-month period for lodging the complaint had not been observed. In their view, that period had started to run from the date of the alleged interference (21\u00a0March\u00a02001) as at the material time there had been no effective domestic remedies for the applicants\u2019 complaints.<\/p>\n 51.\u00a0\u00a0The Government also argued that the applicants\u2019 complaint was in any event manifestly ill-founded. They noted that the disputed searches had been carried out within the framework of the investigation into criminal misconduct by the first applicant. Search orders had been duly approved by the prosecutor, had been carried out in the presence of lay witnesses and had been in full compliance with the provisions of Article\u00a0177 and other provisions of the Code of Criminal Procedure of 1960, which had been in force at the material time.<\/p>\n 52.\u00a0\u00a0The applicants disagreed. Insofar as the six-month rule objection was concerned, they recognised that their attempts to air their complaint before the domestic prosecutorial authorities and the criminal and civil courts (see paragraphs\u00a013, 15 and 17 above) had been to no avail. However, in their view, it had not been obvious at the outset that their efforts were doomed to failure. They stated that they should not be reproached for attempting to exhaust whatever remedies had existed at the material time in the domestic legal order before lodging their application with the Court.<\/p>\n 53.\u00a0\u00a0The applicants reiterated that the disputed searches had been in breach of their rights guaranteed by Article\u00a08 of the Convention.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n 54.\u00a0\u00a0The Court notes that in other Ukrainian cases it has already dismissed arguments similar to those made by the Government in this case about the alleged failure to comply with the six-month time-limit (see\u00a0Vladimir Polishchuk and Svetlana Polishchuk v. Ukraine, no.\u00a012451\/04, \u00a7\u00a7\u00a038-39, 30\u00a0September\u00a02010; Ratushna v. Ukraine, no.\u00a017318\/06, \u00a7\u00a062, 2\u00a0December\u00a02010 andZosymov v. Ukraine, no.\u00a04322\/06, \u00a7\u00a7\u00a051-55). It considers it appropriate to dismiss the Government\u2019s arguments raised in the present case on the same grounds.<\/p>\n 55.\u00a0\u00a0The Government\u2019s objection concerning non-compliance with the six-month rule should therefore be dismissed.<\/p>\n 56.\u00a0\u00a0The Court further considers that the complaint is not manifestly ill\u2011founded within the meaning of Article\u00a035\u00a0\u00a7\u00a03\u00a0(a) of the Convention and not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 57.\u00a0\u00a0The applicants alleged that the searches in their flats had been neither lawful nor necessary in a democratic society.<\/p>\n 58.\u00a0\u00a0The Government did not submit any comments on the merits.<\/p>\n 59.\u00a0\u00a0The Court finds that the impugned searches constituted an interference with the applicants\u2019 rights to respect for their private life and home within the meaning of Article\u00a08, paragraph\u00a01 of the Convention. The question remains whether that interference was justified under paragraph\u00a02 of that provision.<\/p>\n 60.\u00a0\u00a0In that connection, the Court reiterates that in order to comply with Article\u00a08\u00a0\u00a7\u00a02, the interference must, among other things, be \u201cin accordance with the law\u201d; that is, it should have some basis in domestic law and be compatible with the rule of law (see, among other authorities, S.\u00a0andMarper v.\u00a0the United Kingdom [GC], nos.\u00a030562\/04 and 30566\/04, \u00a7\u00a095, ECHR 2008, and Belousov v. Ukraine, no.\u00a04494\/07, \u00a7\u00a0104, 7\u00a0November\u00a02013).<\/p>\n 61.\u00a0\u00a0In its recent judgment in the case of Zosymov(cited above, \u00a7\u00a060), the Court recapitulated the principles relevant to the concept of the rule of law as follows:<\/p>\n \u201cIn 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.\u00a04158\/05, \u00a7\u00a077, ECHR\u00a02010 (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.\u00a044787\/98, \u00a7\u00a046, ECHR 2001-IX). In various contexts of Article\u00a08 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.\u00a028718\/09, \u00a7\u00a068, 5\u00a0March\u00a02015).\u201d<\/p>\n 62.\u00a0\u00a0With regard to the safeguards against abuse existing in Ukrainian legislation at the material time, the Court observes that, in the absence of a requirement for prior judicial authorisation for searches and seizures before the June\u00a02001 amendments to the 1960 Code of Criminal Procedure (see paragraph\u00a040above), the law-enforcement authorities had unfettered discretion to assess the expediency and scope of such measures. Furthermore, the fact that search orders were issued in the present case by the law-enforcement authorities was not counterbalanced by the availability of some meaningful ex post factum judicial review procedure, as acknowledged by the Government in their observations (see paragraph\u00a050 above; compare and contrast with Smirnov v. Russia, no.\u00a071362\/01, \u00a7\u00a045, 7\u00a0June\u00a02007).<\/p>\n 63.\u00a0\u00a0The Court reiterates that the rule of law implies, inter alia, that interference by the executive authorities with an individual\u2019s rights should be subject to effective supervision, which should normally be carried out by the judiciary, at least in the last resort, since judicial control affords the best guarantees of independence, impartiality and a proper procedure (see in this context Volokhy v. Ukraine, no.\u00a023543\/02, \u00a7\u00a052, 2\u00a0November\u00a02006). Absent a legally established procedure ensuring the meaningful involvement of an independent judiciary body in scrutinising the legality and proportionality of the search operations at the material time, the Court concludes that the interference complained of cannot be considered as having been compatible with the \u201crule of law\u201d: the applicable law did not provide sufficient safeguards against an abuse of the disputed police interventions (see, mutatis mutandis, Funke v. France, 25\u00a0February\u00a01993, \u00a7\u00a057, Series\u00a0A no.\u00a0256\u2011A; Volokhy, cited above, \u00a7\u00a054; and Zosymov, cited above, \u00a7\u00a7\u00a061\u2011\u00a062).<\/p>\n 64.\u00a0\u00a0Those findings are sufficient for the Court to conclude that there has been a breach of Article\u00a08 of the Convention. They also obviate the need to examine the other arguments submitted by the parties.<\/p>\n III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE\u00a01 OF PROTOCOL No.\u00a01 OF THE CONVENTION<\/p>\n 65.\u00a0\u00a0The first applicant further complained that his papers, suits and perfume had been arbitrarily seized and retained by the police for a lengthy period of time in conditions which had caused a deterioration and loss of property. He relied on Article\u00a01 of Protocol No.\u00a01 to the Convention, the relevant parts of which read as follows:<\/p>\n \u201cEvery 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.<\/p>\n 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.\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 66.\u00a0\u00a0The Government noted that this complaint had been examined by the domestic courts, which had awarded the first applicant compensation for the lengthy retention of and damage to those of his belongings which had not been returned to him in due time. In the absence of any evidence that the amount of compensation was arbitrary, there was no Convention issue to raise and the complaint was manifestly ill-founded.<\/p>\n 67.\u00a0\u00a0The first applicant disagreed. He argued that the compensation had been inadequate. Moreover, the courts had not considered a very important aspect of his complaint: the question of whether the initial seizure had been arbitrary.<\/p>\n 68.\u00a0\u00a0In the light of the casefile materials and arguments raised by the parties, the Court considers that the present complaint is not manifestly ill\u2011founded within the meaning of Article\u00a035\u00a0\u00a7\u00a03\u00a0(a) of the Convention and that the arguments raised by the parties call for its examination on the merits.<\/p>\n 69.\u00a0\u00a0The Court further considers that the present complaint is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 70.\u00a0\u00a0The first applicant argued that the applicable law had not included any procedural safeguards against the unfettered discretion exercised by the law-enforcement authorities in making decisions concerning the seizure of his belongings. In his view, the measure had been too broad and the items concerned had had no relevance to the investigation within the framework of which they had been seized. The items should not have been seized at all, or, at the very least, they should have been returned to him promptly as their continued retention by the police had served no legitimate purpose. While some items had been returned to the applicant within several months, others had been lost, damaged, or returned after a very significant period of time had elapsed and only after he had instituted a separate set of civil proceedings. The compensation awarded to him by the courts for the lengthy retention, loss and deterioration of his property was not in proportion to the actual pecuniary and non-pecuniary damage sustained.<\/p>\n 71.\u00a0\u00a0The Government did not comment on the merits of the complaint.<\/p>\n 72.\u00a0\u00a0The Court notes that it is not disputed in the present case that the papers, suits and perfume seized and retained by the police within the framework of the criminal investigation against the first applicant constituted possessions for the purposes of Article\u00a01 of Protocol No.\u00a01.<\/p>\n 73.\u00a0\u00a0The Court considers that the impugned measures constituted interference falling within the scope of the second paragraph of Article\u00a01 of Protocol\u00a0No.\u00a01 concerning \u201ccontrol of the use of property\u201d (see,\u00a0for example, Plakhteyev and Plakhteyeva v. Ukraine, no.\u00a020347\/03, \u00a7\u00a053, 12\u00a0March\u00a02009).<\/p>\n 74.\u00a0\u00a0In that connection, the Court reiterates that the first and most important requirement of Article\u00a01 of Protocol No.\u00a01 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful (see Iatridis v. Greece [GC], no.\u00a031107\/96, \u00a7\u00a058, ECHR\u00a01999\u2011II). The requirement of lawfulness for the purposes of Article\u00a01 of Protocol No.\u00a01, as for the purposes of Article\u00a08 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, Zosymov, cited above, \u00a7\u00a073, with further references).<\/p>\n 75.\u00a0\u00a0The Court notes that the first applicant eventually received compensation for the lengthy retention, loss and deterioration of some items seized from him (see paragraph21above). Regard being had to the Court\u2019s subsidiary role under the Convention, it does not consider itself competent in the present case to substitute its own judgment for that of the domestic judicial authorities in determining the fair amount of compensation. At the same time, the Court notes the first applicant\u2019s argument that a central element of his complaint \u00ad\u2013 namely concerning the arbitrariness of the initial seizure as such\u2013 was left outside the scope of judicial scrutiny (see paragraphs\u00a021-23 above). It follows that the domestic law, as interpreted by the competent judicial authorities in the present case, did not provide a meaningful possibility of reviewing the unfettered discretion afforded to the law-enforcement authority in deciding what items to seize and retain within the framework of pending criminal proceedings.<\/p>\n 76.\u00a0\u00a0In view of the above, and similarly to its findings in respect of the applicants\u2019 complaint raised under Article\u00a08 of the Convention, the Court concludes that domestic law did not provide the requisite procedural guarantees against arbitrariness in the application of the above measures and thus did not meet the \u201cquality of law\u201d requirement for the purposes of the Convention (see also Zosymov, \u00a7\u00a7\u00a074 and 78). Accordingly, the interference in question was not \u201cin accordance with the law\u201d.<\/p>\n 77.\u00a0\u00a0Those findings are sufficient for the Court to conclude that there has been a breach of Article\u00a01 of Protocol No.\u00a01 in the present case and obviate the need to analyse any further arguments raised by the parties.<\/p>\n IV.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION<\/p>\n 78.\u00a0\u00a0Referring to Article\u00a013 of the Convention, the applicants also alleged that there had been no effective remedies for their complaints raised under Article\u00a08 and Article\u00a01 of Protocol No.\u00a01. Article 13 reads as follows:<\/p>\n \u201cEveryone 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.\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 79.\u00a0\u00a0The Government alleged that there was no issue under Article\u00a013because the applicants\u2019 complaints under Article\u00a08 of the Convention and Article\u00a01 of Protocol No.\u00a01 were not arguable.<\/p>\n 80.\u00a0\u00a0The applicants disagreed.<\/p>\n 81.\u00a0\u00a0The Court observes that Article\u00a013 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 \u201carguable\u201d in terms of the Convention (see, as a classic reference, Boyle and Rice v. the United Kingdom, 27\u00a0April\u00a01988, \u00a7\u00a054, Series\u00a0A no.\u00a0131).<\/p>\n 82.\u00a0\u00a0Regard being had to the Court\u2019s findings in paragraph56 and 69 above that all three applicants had made out arguable claims under Article\u00a08 of the Convention and the first applicant had made out an arguable claim under Article\u00a01 of Protocol No.\u00a01, the Court finds that their complaints under Article\u00a013 must be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 83.\u00a0\u00a0The Court reiterates that Article\u00a013 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\u00a013 is thus to require the provision of a domestic remedy to deal with the substance of an \u201carguable complaint\u201d under the Convention and to grant appropriate relief (see, among other authorities, Kud\u0142a v. Poland [GC], no.\u00a030210\/96, \u00a7\u00a0157, ECHR\u00a02000\u2011XI).<\/p>\n 84.\u00a0\u00a0The Court refers to paragraphs\u00a062-63 and 75-76above, in which it found that domestic law, as interpreted by the competent courts, did not contain any procedural safeguards enabling the applicants to challenge the decisions and conduct of the law-enforcement authorities, which, in their view, had violated their rights under Article\u00a08 of the Convention and Article\u00a01 of Protocol No.\u00a01.<\/p>\n 85.\u00a0\u00a0In the Court\u2019s view, the foregoing considerations are sufficient to conclude that the applicants had no effective domestic remedies available to them in connection with their complaints under Article\u00a08 of the Convention and Article\u00a01 of Protocol No.\u00a01.<\/p>\n 86.\u00a0\u00a0Accordingly, there has been a breach of Article 13 of the Convention.<\/p>\n V.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 87.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 88.\u00a0\u00a0The first applicant claimed EUR\u00a027,240in pecuniary damage. That figure included EUR\u00a04,380 in legal fees allegedly incurred by him in the domestic proceedings; EUR\u00a0300 in postal expenses; EUR\u00a0200 in copying services and other administrative expenses; and EUR\u00a01,000 and EUR\u00a06,000 in compensation for the perfume and suits, which had been seized and either lost or damaged by the police. The remaining amount of EUR\u00a015,360 was to compensate him for medical expenses allegedly incurred as a result of the stress provoked by the criminal proceedings against him.<\/p>\n 89.\u00a0\u00a0Further to this amount, all the applicants claimed EUR\u00a050,000 each in non-pecuniary damage.<\/p>\n 90.\u00a0\u00a0The Government submitted that all the claims lodged by the applicants were unsubstantiated and exorbitant, except for the first applicant\u2019s claim for postal expenses, which the Government left to the Court\u2019s discretion.<\/p>\n 91.\u00a0\u00a0The Court considers at the outset that the first applicant\u2019s claims for legal fees, postal and other expenses fall to be considered under the head \u201ccosts and expenses\u201d (see paragraph\u00a099below).<\/p>\n 92.\u00a0\u00a0As far as the first applicant\u2019s claim relating to compensation for lost and damaged suits and perfumes is concerned, an amount has already been awarded in the domestic proceedings. There is no evidence that the award of a further amount is warranted on the facts of the case.<\/p>\n 93.\u00a0\u00a0The Court notes that the first applicant\u2019s claims for medical expenses have not been supported by documents and, in any event,it fails to discern a causal link between the violations found and the pecuniary damage alleged.<\/p>\n 94.\u00a0\u00a0In the light of all the above, the Court rejects the first applicant\u2019s claim for pecuniary damage.<\/p>\n 95.\u00a0\u00a0On the other hand, insofar as the applicants claim non-pecuniary damage, the Court considers that they must have suffered anguish and distress in connection with the violations of their Convention rights. Ruling on an equitable basis, the Court awards EUR\u00a04,500 to the first and second applicants jointly and EUR\u00a0900 to the third applicant in respect of non\u2011pecuniary damage.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 96.\u00a0\u00a0The applicants also claimed EUR\u00a010,800 for the legal fees incurred in connection with their legal representation. They presented copies of contracts for legal representation before the Court concluded by them on 4\u00a0February\u00a02017 with Mr\u00a0M.[2]\u00a0Tarakhkalo and acts of acceptance of his services dated 31\u00a0March\u00a02017. According to those documents, Mr\u00a0Tarakhkalo spent twenty-four hours preparing observations in response to those of the Government on each applicant\u2019s behalf at a rate of EUR\u00a0150 per hour. They were only bound to pay those fees if the Court made a relevant legal fees award.<\/p>\n 97.\u00a0\u00a0The Government noted that only one set of observations had been made on behalf of all three applicants and argued that the amounts claimed were exorbitant.<\/p>\n 98.\u00a0\u00a0According to the Court\u2019s 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.<\/p>\n 99.\u00a0\u00a0In the present case, regard being had to the documents in its possession, the fact that the applicants have already been granted EUR\u00a0850 in legal aid and the above criteria, the Court considers it reasonable to award the applicants jointly EUR\u00a01,650 in legal fees incurred in connection with the Convention proceedings to be transferred directly to the account of the applicants\u2019 lawyer, Mr\u00a0M.[3]\u00a0Tarakhkalo. It further awards the first applicant EUR\u00a0500 in respect of postal and various other expenses incurred in connection with bringing the domestic and Convention proceedings.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 100.\u00a0\u00a0The 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.<\/p>\n FOR THESE REASONS, THE COURT UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declares the complaints raised under Articles\u00a08 and 13 of the Convention and Article\u00a01 of Protocol\u00a0No.\u00a01 admissible and the remainder of the application inadmissible;<\/p>\n 2.\u00a0\u00a0Holds that there has been a violation of Article 8 of the Convention in respect of all applicants;<\/p>\n 3.\u00a0\u00a0Holds that there has been a violation of Article\u00a01 of Protocol\u00a0No.\u00a01 in respect of the first applicant;<\/p>\n 4.\u00a0\u00a0Holds that there has been a violation of Article 13 of the Convention in respect of all applicants;<\/p>\n 5.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicants, within three monthsfrom the date of this judgment, the following amounts,to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n (i)\u00a0\u00a0EUR\u00a04,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the first and second applicants jointly;<\/p>\n (ii)\u00a0\u00a0EUR\u00a0900 (nine hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the third applicant;<\/p>\n (iii)\u00a0\u00a0EUR\u00a01,650 (one thousand six hundred and fifty euros), plus any tax that may be chargeable to the applicants, in respect of legal fees, to be transferred directly to the account of the applicants\u2019 lawyer Mr\u00a0M.[4]\u00a0Tarakhkalo;<\/p>\n (iv)\u00a0\u00a0EUR\u00a0500 (five hundred euros), plus any tax that may be chargeable, to the first applicant in respect of other costs and expenses.<\/p>\n (b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 6.\u00a0\u00a0Dismisses the remainder of the applicants\u2019 claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 18 January 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Anne-Marie Dougin\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Andr\u00e9 Potocki ____________<\/p>\n [1]Rectified on 7 February 2018: the text was \u201cO. Tarakhkalo\u201d.
\nM\u0101rti\u0146\u0161 Mits,
\nL\u04d9tif H\u00fcseynov, judges,
\nand Anne-Marie Dougin, Acting Deputy Section Registrar,<\/p>\n
\nTransitional Provisions<\/p>\n
\nActing Deputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n
\n[2]Rectified on 7 February 2018: the text was \u201cO. Tarakhkalo\u201d.
\n[3]Rectified on 7 February 2018: the text was \u201cO. Tarakhkalo\u201d.
\n[4]Rectified on 7 February 2018: the text was \u201cO. Tarakhkalo\u201d.<\/p>\n