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FIFTH
SECTION
CASE OF VOLOKHY v. UKRAINE
(Application
no. 23543/02)
JUDGMENT
STRASBOURG
2 November 2006
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Volokhy v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mr K.
Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R.
Maruste,
Mr J. Borrego Borrego,
Mrs R. Jaeger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 30 August and 9 October 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 23543/02)
against Ukraine lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Ukrainian nationals,
Mrs Olga Volokh (“the first applicant”) and Mr Mykhaylo
Volokh (“the second applicant”), on 3 June 2002.
- The Ukrainian Government (“the Government”)
were represented by their Agent, Mrs V. Lutkovska, of the Ministry of
Justice.
- On 27 June 2005 the Court decided to communicate the
application to the Government. Under the provisions of Article 29 §
3 of the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
- On 1 April 2006 this case was assigned to the newly
constituted Fifth Section (Rule 25 § 5 and Rule 52 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicants were born in 1933 and 1961 respectively
and live in the city of Poltava.
A. Interception of the applicants’ correspondence
- In May 1996 the Poltava Regional Police Department
(hereinafter – the PRPD) instituted criminal proceedings for
tax evasion against Mr V., who is, respectively, the son of the first
applicant and the brother of the second applicant. On 28 May 1996 the
investigator placed Mr V. under an obligation not to abscond.
- On 4 September 1996, following the failure of Mr V. to
appear for interrogation and in the absence of information about his
whereabouts, an arrest warrant for Mr V. was issued.
- On 6 August 1997 the PRPD investigator issued an order
for interception and seizure of the postal and telegraphic
correspondence of the applicants (hereinafter – “the
interception order”) on the following grounds:
“The private entrepreneur Mr V., during the period
between 1 January 1994 and 1 January 1996, intentionally did not pay
taxes to the State budget in the amount of UAH 12,889,
having caused damage and substantial losses to the State.
On 28 May 1996 the preventive measure – obligation
not to abscond – was ordered in respect of Mr V., but, having
been summoned by the investigator, Mr V. did not come to him, and his
whereabouts at the present are unknown. On 4 September 1996 the
preventive measure – detention – was ordered in respect
of Mr V.
... Mr V. may inform his mother and brother about his
whereabouts, using the postal and telegraphic correspondence.”
No
time-limit for the interception had been fixed in the order.
- On 11 August 1997 the President of the Zhovtnevyy
District Court approved the interception order by having signed it.
The applicants maintained that they had learned about this order by
chance at the end of 1998.
- On 4 May 1998 the criminal case against Mr V. was
terminated as being time-barred.
- According to the applicants, Mr V. had appeared in
summer 1998 and met with the investigator in his case. During this
meeting he found out about the interception order.
- On 28 May 1999 the PRPD investigator cancelled the
interception order on the grounds that the criminal case against Mr
V. had been closed and there were no further need to intercept the
applicants’ correspondence. This cancellation was approved and
signed by the President of the Zhovtnevyy District Court the same
day.
- By letter of 19 July 1999, the Poltava Regional
Prosecutor’s Office, in reply to their complaint, informed the
applicants that the interception of their correspondence had been
ordered lawfully and therefore the law-enforcement officers incurred
no liability.
- On 14 November 1999, according to the Government, the
whereabouts of Mr V. were established by the investigation.
- By letter of 6 January 2000 to Mr V., in reply to his
complaints about the criminal proceedings against him, the General
Prosecutor’s Office (hereinafter “the GPO”) noted,
inter alia, that the interception order was not well-founded.
- By letter of 1 February 2000, the first applicant was
informed that on 15 August 1997 (15 September 1997 according to the
Government) a letter addressed to her had been intercepted by the
police but, as it contained no information about the whereabouts of
Mr V., it was not seized but was forwarded to her.
B. Proceedings for compensation
- On 20 January 2000 the applicants claimed compensation
from the Head of the PRPD for the damage caused by ordering the
interception of their correspondence.
- By letter of 27 January 2000, the Head of the PRPD
informed the second applicant that the interception order had been
lawful and that, therefore, there were no grounds to award damages.
- By letter of 19 November 2000, the Head of the PRPD
informed the second applicant that the seizure of correspondence had
been in compliance with the law and that the applicant had no right
to compensation, given that the criminal case against his brother had
been terminated on non-exonerative grounds.
- By letter of 21 November 2000, the Poltava Regional
Prosecutor’s Office informed the second applicant that the
issue of compensation was within the competence of the courts.
- On 18 February 2000 the applicants lodged a claim with
the Leninsky District Court of Poltava against the PDPR seeking
compensation for the moral damage caused by the interference with
their correspondence. In support of their claim, they referred to the
letter of the GPO of 6 January 2000, where it was acknowledged that
the interception order lacked grounds.
- On 11 October 2001 the Leninsky District Court found
against the applicants. The court concluded that the interception
order had been lawful and well-founded, the criminal proceedings
against Mr V. having been terminated on non-exonerative grounds
(нереабілітуючі
обставини),
and that the applicants did not prove that they had suffered any
moral damage due to the interference with their correspondence. The
court held that the applicants’ claim was unsubstantiated and
that the GPO’s letter of 6 January 2000 could not be a
ground for awarding them any damages. It, therefore, rejected the
applicants’ claim in full.
- On 8 January 2002 the Appellate Court of Poltava
Region upheld the decision of the first instance court.
- On 9 February 2004 the panel of three judges of the
Supreme Court rejected the applicants’ request for leave to
appeal in cassation.
II. RELEVANT DOMESTIC LAW
A. Constitution of Ukraine
- The relevant extracts of the Constitution of Ukraine
(first published in the Gazette of the Verkhovna Rada of Ukraine of
23 July 1996, No. 30, article 141) read as follows:
Article 31
“Everyone shall be guaranteed privacy of mail,
telephone conversations, telegraph and other correspondence.
Exceptions shall be established only by a court in cases envisaged by
law, with the purpose of preventing crime or ascertaining the truth
in the course of the investigation of a criminal case, if it is not
possible to obtain information by other means.”
Article 55
“Human and citizens’ rights and freedoms
shall be protected by the courts.
Everyone shall be guaranteed a right to challenge in
court the decisions, actions or omissions of bodies of State power,
bodies of local self-government, officials and officers. ...
Everyone shall have a right to protect his or her rights
and freedoms from violations and illegal encroachments by any means
not prohibited by law.”
Article 56
“Everyone shall have a right to compensation from
public or municipal bodies for losses sustained as a result of
unlawful decisions, acts or omissions by public or municipal bodies
or civil servants in the performance of their official duties.”
Chapter XV
Transitional Provisions
“13. The existing procedure for the
arrest, custody and detention of persons suspected of committing an
offence, and the procedure for carrying out an examination and search
of a person’s home and other property, shall be retained for
five years after the entry into force of the present Constitution.”
B. Code of Criminal Procedure
- At the material time Article 187 of the Code in the
wording of 16 April 1984 (the relevant Amendment Law first
published in the Gazette of the Verkhovna Rada of the Ukrainian SSR,
1984, No. 18, article 351) read as follows:
The interception of correspondence and its seizure in
postal and telegraphic establishments
“The interception of correspondence and its
seizure in postal and telegraphic establishments shall be conducted
with the approval of the prosecutor or his deputy, or upon the
resolution of a court.
The investigator shall issue an order for interception
and seizure of postal and telegraphic correspondence. In that order,
the investigator shall propose that a postal and telegraphic
establishment intercept the correspondence defined in the order and
inform him about it. The examination of correspondence shall be
conducted in the presence of two representatives of the post office,
and minutes are drawn up to this end.
The interception of correspondence shall be cancelled by
an order of the investigator, when the application of this measure is
no longer required.”
(This Article was substantially re-worded in June
2001)
C. The Law of Ukraine “on Search and Seizure
Activities” of 18 February 1992
- The relevant provisions of the Law (first published in
the official newspaper “Golos Ukrainy”, 27 March 1992,
No. 56) provided as relevant:
Article 6
Grounds for conduct of the search and seizure
activities
“The grounds for conduct of the search and seizure
activities are:
1) presence of sufficient information, about ...
- persons who are preparing or have committed a crime;
- persons who are hiding from the investigative bodies,
court or are evading the application of criminal sanctions; ...
It is prohibited to make decisions on the conduct of
search and seizure activities for other purposes than the ones
established by this Article.”
Article 8
The rights of the departments that conduct search and
seizure activities
“Operational units when executing their tasks in
connection with operational searches (...) have the following rights:
10) to survey selectively, in accordance with particular
characteristics, telegraphic and postal correspondence.”
Article 9
Guarantees of lawfulness during the conduct of search
and seizure activities
“...During the search and seizure activities
violation of rights and freedoms of individuals and legal persons
shall not be allowed. Any limitation of these rights and freedoms
shall be of an exceptional and temporary nature ... in the situations
stipulated by the legislation of Ukraine with the aim of protecting
the rights and freedoms of other persons, the safety of the
society...
During the search and seizure activities, officers of
the operational units shall be obliged to take into account their
proportionality to the level of social danger of criminal attempts
and the danger to the interests of the society and the State.
In case of violation of rights and freedoms of
individuals and legal persons ...the Ministry of Internal Affairs...
shall restore the violated rights and compensate for the material and
moral damage which had occurred.”
D. The Law of Ukraine “on the procedure for the
compensation of damage caused to the citizen by the unlawful actions
of bodies of inquiry, pre-trial investigation, prosecutors and
courts” of 1 December 1994
- The relevant provisions of the Law (first published in
the Gazette of the Verkhovna Rada of Ukraine of 3 January 1995, No.
1, article 1) read as follows:
Article 1
“Under the provisions of this Law a citizen is
entitled to compensation for damages caused by:
...3) unlawful conduct of search and seizure activities
...
Article 2
“The right to compensation for damages in the
amount of and in accordance with the procedure established by this
Law shall arise in cases of:
acquittal by a court;
the termination of a criminal case on grounds of the
absence of proof of the commission of a crime, the absence of corpus
delicti, or a lack of evidence of the accused’s
participation in the commission of the crime;
the refusal to initiate criminal proceedings or the
termination of criminal proceedings on the grounds stipulated in
sub-paragraph 2 of paragraph 1 of this Article;
the termination of proceedings for an administrative
offence.”
Article 3
“In the cases referred to in Article 1 of this Law
the applicant shall be compensated for...
5) moral damage.”
Article 4
“...Compensation for moral damage shall be given
in cases in which unlawful actions of bodies of inquiry, pre-trial
investigation, prosecutors and courts caused moral losses to a
citizen, led to disruption of his usual life relations and required
additional efforts for organisation of his or her life.
The moral damage shall be considered suffering caused to
a citizen due to physical or psychological influence which led to
deterioration or deprivation of possibilities to follow his or her
usual habits and wishes, deterioration of relations with people
around, other negative impacts of moral nature.”
THE LAW
- The applicants complained about a violation of their
right to respect for their correspondence as provided in Article 8 of
the Convention. Relying on Article 13 of the Convention they
maintained that they had no effective domestic remedies to
acknowledge unlawfulness of interference with their rights and to
claim compensation. These provisions read, insofar as relevant, as
follows:
Article 8
“1. Everyone has the right to respect
for ... 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.”
Article 13
“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.”
I. ADMISSIBILITY
A. The Government’s preliminary objection
- The Government presented a preliminary objection as to
non-exhaustion of the domestic remedies by the applicants with
respect to the period between 4 May 1998 and 4 May 1999. They
maintained that the compensatory proceedings instituted by the
applicants had been related only to the period of interception
between 6 August 1997 and 4 May 1998, since the applicants had
complained also about unlawfulness of the criminal proceedings in the
framework of which the interception had been ordered.
- The applicants disagreed with this objection.
- The
Court reiterates that it is incumbent on the Government claiming
non-exhaustion to satisfy the Court that the remedy was an effective
one available in theory and in practice at the relevant time, that is
to say, that it was accessible, was one which was capable of
providing redress in respect of the applicant’s complaints and
offered reasonable prospects of success (see Selmouni v. France
[GC], no. 25803/94, § 76, ECHR 1999 V).
- The
Court observes that in the present case, the Government considered
that the applicants’ claim before the domestic judicial
authorities related only to a part of and not to the totality of the
period during which the interception order had been in force. The
Government did not suggest or mention any other domestic remedy
except the one which had been used by the applicants.
- In
the Court’s opinion, it would appear more appropriate to
consider the effectiveness of the last-mentioned remedy under Article
13 of the Convention which had been relied on by the applicants. The
Court therefore joins this objection to the merits of the applicant’s
complaint under Article 13.
B. Compatibility ratione temporis
- The Court notes that the decision ordering the
interception of the applicants’ correspondence was given on 6
August 1997 and therefore fall outside its jurisdiction ratione
temporis. The major period of interception, however, was after 11
September 1997, the date of the entry of the Convention into force in
respect of Ukraine. The Court, however, will take into account the
events that took place prior to the above date, including the
decision on interception, in assessing whether the interference with
the applicants’ correspondence satisfied the requirements of
Article 8 § 2 of the Convention.
C. Observance of six-month rule
- The
Court observes that the applicants’ complaint under Article 13
of the Convention, namely the ineffectiveness of the compensatory
proceedings, suggests that there was no effective remedy to exhaust
in their situation. The question therefore arises whether the
application was lodged within a period of six months as required by
Article 35 § 1 of the Convention.
- The
Court observes that the application was introduced on 3 June
2002. It notes that according to its well-established case-law, where
no domestic remedy is available the six-month period runs from the
date of the act complained of. However, special considerations could
apply in exceptional cases where an applicant first avails himself of
a domestic remedy and only at a later stage becomes aware, or should
have become aware, of the circumstances which make that remedy
ineffective. In such a situation, the six-month period could be
calculated from the time when the applicant becomes aware, or should
have become aware, of these circumstances (see, among others, Laçin
v. Turkey, no. 23654/94, Commission decision of 15 May 1995,
Decisions and Reports (DR) 81-B, p. 31)
- In
this respect, the Court notes that the applicants took steps to bring
their complaints to the attention of the domestic authorities. In
particular, on 18 February 2000 they lodged a claim with the Leninsky
District Court of Poltava against the PDPR seeking compensation for
the moral damage caused by the interference with their correspondence
under the Law of Ukraine “on the procedure for the compensation
of damage caused to the citizen by the unlawful actions of bodies of
inquiry, pre-trial investigation, prosecutors and courts”. The
Government maintained that this remedy was effective for the
applicant’s complaint under Article 8. Moreover, the domestic
law, namely Article 55 and 56 of the Constitution and Article 9 of
the Law “on Search and Seizure Activities” (see
paragraphs 25 and 27 above) suggested that an individual could
challenge the unlawful actions of investigation authorities in the
domestic courts and the only mechanism, on which parties relied in
their submissions to the Court, was a mechanism envisaged by the
above mentioned Law “on the procedure for the compensation of
damage caused to the citizen by the unlawful actions of bodies of
inquiry, pre-trial investigation, prosecutors and courts”. On
11 October 2001 the first-instance court rejected the
applicant’s claim as unsubstantiated, and not on the ground
that law was not applicable to the applicants. On 8 January 2002, the
court of appeal upheld the decision of the first-instance court (see
paragraphs 22 and 23 above).
- It
could be argued that at that point of time, the applicants should
have doubted the effectiveness of this remedy. Indeed they lodged
their application with this Court within a period of six month after
the decision of the appellate court, while the proceedings were still
pending before the Supreme Court of Ukraine.
- The
Court considers that in the circumstances of the present case the
applicants could not be reproached for pursuing the impugned remedy
prior to lodging their application with this Court. The Court
concludes that the applicants must be regarded as having complied
with the six-month rule.
D. Conclusion
- The Court notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
A. Whether there has been an interference
- It was not disputed by the parties that the decision
on interception of the applicants’ correspondence constituted
“an interference by a public authority” within the
meaning of Article 8 § 2 of the Convention with the applicants’
right to respect for their correspondence guaranteed by paragraph 1
of Article 8.
B. Whether the interference was justified
- The
cardinal issue that arises is whether the above interference is
justifiable under paragraph 2 of Article 8. That paragraph, since it
provides for an exception to a right guaranteed by the Convention, is
to be interpreted narrowly. The Court reiterates that powers of
secret surveillance of citizens in the course of criminal
investigations are tolerable under the Convention only in so far as
strictly necessary (see, mutatis mutandis, Klass and Others
v. Germany, judgment of 6 September 1978, Series A no. 28, p. 21,
§ 42).
- If
it is not to contravene Article 8, such interference must have been
“in accordance with the law”, pursue a legitimate aim
under paragraph 2 and, furthermore, be necessary in a democratic
society in order to achieve that aim.
- The Government maintained that the decision on
interception of the applicants’ correspondence had been given
in accordance with Article 187 of the Code of Criminal
Procedure. The applicants did not contest this argument, but
maintained that the provisions of Article 31 of the Constitution had
not been respected.
- The Court notes that Article 31 of the Constitution,
Article 187 of the Code of Criminal Procedure and Article 8 of the
Law “on search and seizure activities” provided for the
possibility to conduct interception of the correspondence in the
framework of criminal proceedings and the search and seizure
activities (see paragraphs 25-27 above).
- There was, therefore, a legal basis for the
interference in domestic law.
- As
to the accessibility of the law, the Court regards that requirement
as having been satisfied, seeing that all the above listed legal acts
had been published (see paragraphs 25-27 above).
- As
regards the requirement of foreseeability, the Court reiterates that
a rule is “foreseeable” if it is formulated with
sufficient precision to enable any individual – if need be with
appropriate advice – to regulate his conduct. The Court has
stressed the importance of this concept with regard to secret
surveillance in the following terms (see the Malone v. the United
Kingdom judgment of 2 August 1984, Series A no. 82, p. 32, §
67, reiterated in Amann v. Switzerland [GC], no. 27798/95, §
56, ECHR 2000 II):
“The Court would reiterate its opinion that the
phrase ‘in accordance with the law’ does not merely refer
back to domestic law but also relates to the quality of the ‘law’,
requiring it to be compatible with the rule of law, which is
expressly mentioned in the preamble to the Convention ... The phrase
thus implies – and this follows from the object and purpose of
Article 8 – that there must be a measure of legal protection in
domestic law against arbitrary interferences by public authorities
with the rights safeguarded by paragraph 1 ... Especially where a
power of the executive is exercised in secret, the risks of
arbitrariness are evident ...
... Since the implementation in practice of measures of
secret surveillance of communications is not open to scrutiny by the
individuals concerned or the public at large, 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 the scope of any such discretion conferred on the
competent authorities and the manner of its exercise with sufficient
clarity, having regard to the legitimate aim of the measure in
question, to give the individual adequate protection against
arbitrary interference.”
- The
“quality” of the legal rules relied on in this case must
therefore be scrutinised, with a view, in particular, to ascertaining
whether domestic law laid down with sufficient precision the
circumstances in which the law enforcement bodies could perform the
interception of the applicants’ correspondence.
- The Court notes in this connection that the
requirements of proportionality of the interference, and of its
exceptional and temporary nature were stipulated in Article 31 of the
Constitution and Article 9 of the Law of Ukraine “on Search and
Seizure Activities” of 18 February 1992 (see paragraphs 25 and
27 above). However, neither Article 187 of the Code of Criminal
Procedure in its wording at the time of the events, nor any other
provision of Ukrainian law contained a mechanism which would ensure
that the above principles were respected in practice. The provision
in question (see paragraph 26 above) contains no indication as to the
persons concerned by such measures, the circumstances in which they
may be ordered, the time-limits to be fixed and respected. It cannot
therefore be considered to be sufficiently clear and detailed to
afford appropriate protection against undue interference by the
authorities with the applicants’ right to respect for their
private life and correspondence.
- Furthermore,
the Court must be satisfied that there exist adequate and effective
safeguards against abuse, since a system of secret surveillance
designed to protect national security and public order entails the
risk of undermining or even destroying democracy on the ground of
defending it (see the Klass and Others judgment cited above, pp.
23-24, §§ 49-50). Such safeguards must be equally
established by law in unequivocal manner and be applied to the
supervision of the relevant services’ activities. Supervision
procedures must follow the values of a democratic society as
faithfully as possible, in particular the rule of law, which is
expressly referred to in the Preamble to the Convention. The rule of
law implies, inter alia, that interference by the executive
authorities with an individual’s 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 the Klass and Others judgment cited above, pp.
25-26, § 55).
- In the instant case, the Court observes that the
review of the decision on interception of correspondence under
Article 187 of the Code of Criminal Procedure was foreseen at the
initial stage, when the interception of correspondence was first
ordered. The relevant legislation did not provide, however, for any
interim review of the interception order in reasonable intervals or
for any time-limits for the interference. Neither did it require or
authorise more involvement of the courts in supervising interception
procedures conducted by the law-enforcement authorities. As a result,
the interception order in the applicants’ case remained valid
for more than one year after the criminal proceedings against their
relative Mr V. had been terminated and the domestic courts did not
react to this fact in any way.
- The Court concludes that the interference cannot
therefore be considered to have been “in accordance with the
law” (see paragraph 49 above) since Ukrainian law does not
indicate with sufficient clarity the scope and conditions of exercise
of the authorities’ discretionary power in the area under
consideration and does not provide sufficient safeguards against
abuse of this surveillance system.
It follows that there has been a violation of Article 8 of the
Convention arising from the interception of the applicants’
correspondence.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicants complained about a lack of domestic remedies to seek
redress for the unlawful interference with their correspondence. They
relied on Article 13 of the Convention.
- The
Government contested that argument. They referred to their
preliminary objection and to Article 55 of the Constitution that
guarantees a right to challenge any action of public authorities in
the courts.
- The
applicants maintained that they could not challenge the interception
order, since the State authorities were not obliged to inform them
about having imposed such measure.
- The
Court recalls its reasoning in the Klass case (cited above, §§
68-70), in which it observed that it was the secrecy of the measures
which rendered it difficult, if not impossible, for the person
concerned to seek any remedy of his own accord, particularly while
surveillance was in progress. Nevertheless, in the Klass case it was
established that the competent authority was bound to inform the
person concerned as soon as the surveillance measures were
discontinued and notification could be made without jeopardising the
purpose of the restriction, and such person had a number of remedies
available to him or her. Moreover, in the Klass case the Court took
into account the existence of a system of proper control over
surveillance measures and found no violation of Article 13.
- From
the Government’s submissions, it does not appear that the
Ukrainian legal system offered sufficient safeguards to persons under
surveillance, because there was no obligation to inform a person that
he or she was under surveillance. Even when the persons concerned
learned about the interference with their correspondence, like in the
present case, the right to question the lawfulness of the decision on
interception as guaranteed by the domestic law (see paragraphs 25 and
27 above) appears to be limited in practice, since the only
implementing mechanism is provided by the Law of Ukraine “on
the procedure for the compensation of damage caused to the citizen by
the unlawful actions of bodies of inquiry, pre-trial investigation,
prosecutors and courts”. In the Court’s opinion, this
Law, which is worded in very general terms at least in so far as
persons other than the accused are concerned, could have a remedial
effect in situations comparable to the one of the applicants, touched
by surveillance measures in the context of criminal proceedings
against a third person. However, its application and interpretation
by the domestic courts, as in the present case, does not appear to be
sufficiently broad to encompass complaints of persons other than the
accused.
- The
foregoing considerations are sufficient to enable the Court to
conclude that the applicants did not have an effective domestic
remedy, as required by Article 13, in relation to their complaints
under Article 8 of the Convention about the surveillance measures
involving their postal and telegraphic correspondence.
- The
Court therefore dismisses the Government’s preliminary
objection and holds that there has been a breach of Article 13 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The first applicant claimed 75,000 euros (EUR) and the
second applicant EUR 50,000 in respect of damages, without any
further specification.
- The Government maintained that the impact of the
interference on the applicants’ rights had been minimal. In
their opinion, the applicants’ claims were unspecified and
exorbitant, therefore, finding of a violation, if any, would
constitute sufficient just satisfaction in the present case.
- The
Court, on an equitable basis, awards each of the applicants EUR 1,000
in respect of non-pecuniary damage.
B. Costs and expenses
- The applicants did not make any claims under this head
and the Court, therefore, makes no award.
C. Default interest
- The Court considers it appropriate that the default
interest 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
- Decides to join to the merits the Government’s
preliminary objection;
- Declares the application admissible;
- Holds that there has been a violation of Article
8 of the Convention;
- Dismisses the Government’s preliminary
objection and holds that there has been a violation of
Article 13 of the Convention;
- Holds
(a) that
the respondent State is to pay Mrs Olga Volokh, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,000 (one
thousand euros) in respect of non-pecuniary damage;
(b) that
the respondent State is to pay Mr Mykhaylo Volokh, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 1,000 (one thousand euros) in respect of non-pecuniary damage;
(c) that
the above amounts shall be converted into the national currency of
the respondent State at the rate applicable at the date of
settlement, plus any tax that may be chargeable;
(d) that 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;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 2 November 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
