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08.08.2011

Vinnytsa Court follows Strasbourg in ruling on search of human rights group offices

   

 

On 4 August 2011 the Leninsky District Court in Vinnytsa issued a judgement revoking the refusal to investigate the unlawful search of the offices of the Vinnytsa Human Rights Group [VHG].  In so doing, Judge A. Osaulov allowed the suit filed by VHG Coordinator, Dmytro Groisman over the refusal by Vinnytsa Prosecutor A, Dobroserdov on 5 November 2010 to initiate administrative proceedings against police officers who carried out a search of the human rights group’s office on 15 October 2010.

As reported, the police had a warrant to search the flat of Mr Groisman; none to enter and search the office of the human rights group. 

During the search of the latter, the police removed material pertaining to the Group’s work representing asylum seekers and other documents.

The court established that a warrant had been issued on 22 September 2010 to search Groisman’s flat over an investigation into alleged circulation of video material of a pornographic nature. 

The search was carried out on 15 October and a protocol drawn up.  During this search the officers also carried out an “inspection” of the VHG office.

The court considered Article 190 of the Criminal Procedure Code and the conditions in which, according to this norm, inspections may be carried out as a matter of urgency.  .  “An inspection of a person’s residence or other possessions is carried out only on the basis of a court order providing grounds”.  In emergencies, linked with saving life, etc, as well as with the written consent of the person, such inspections can be carried out without a court order.

VHG rents a flat which it uses as its office. Before the beginning of the inspection in question, the person authorized by the flat’s owner to manage the property wrote a statement giving permission to inspect the room and auxiliary premises, however stipulated that the things in the flat belonged to D. Groisman, that she did not have the keys to those premises and that there were none of her things the

The court considered the judgement passed by the Supreme Court on 28 March 2008 regarding what should be understood as “residence” in the Law on Investigative Operations, as well as European Court of Human Rights case law.

It found that the police had provided no explanation in the protocol of the need to inspect the said premises as a matter of urgency, this being required to justify the lack of court order.

It also took into account the fact that the Deputy Head of the Police Department who carried out the inspection had not been authorized to do so, not being an investigator.

In the resolution refusing to initiate a criminal investigation, the Deputy Prosecutor had stated that the inspection had been carried out in accordance with Article 190 of the CPC, yet did not provide a legal assessment of above-mentioned circumstances – the legal status of the premises and lack of authorization of the person who carried it out.

The court therefore considered that the resolution of the Vinnytsa Deputy Prosecutor, A. Dobroserdov from 5 November 2010 refusing to initiate a criminal investigation against the officers had been issued prematurely, based on incomplete material and In the absence of the proper legal assessment of the actions of those who took part in the inspection.

Since the relevant articles of the CPC do not empower the court to issue instructions to carry out additional checks, Mr Groisman’s application is partially allowed. The court revokes the 5 November 2010 resolution refusing to initiate a criminal investigation. The material should be returned to the Vinnytsa Region Prosecutor to organize an additional check and consideration of whether the law was obeyed in passing the resolution.

This judgement can be appealed within 7 days. 

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