Last Updated on May 11, 2019 by LawEuro
Communicated on 14 November 2018
FOURTH SECTION
Application no. 70170/10
Tatyana Nikolayevna KIBALNAYA
against Ukraine
lodged on 20 November 2010
STATEMENT OF FACTS
The applicant, Ms Tatyana Nikolayevna Kibalnaya, is a Ukrainian national, who was born in 1968 and lives in Zaporizhzhya.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
At the time of the events the applicant’s husband, Mr Yuriy Kibalnyy, worked as the President of the Yuryivka Town Court in the Dnipropetrovsk Region (“the Yuryivka Court”). On 8 July 2008 criminal proceedings were instituted against him on suspicion of bribe-taking.
It appears from the case-file materials that in early July 2008 the police received a complaint that Mr Kibalnyy had demanded a bribe for releasing a criminal suspect under an undertaking not to abscond instead of a custodial preventive measure. It was alleged that on 5 July 2008 the first part of the bribe, 5,000 US Dollars (USD), had been paid to Mr Kibalnyy and that on 9 July 2008 the remaining amount of about 200,000 Ukrainian hryvnias (UAH) was to be paid to him.
On 9 July 2008 the police conducted a search in the house of the applicant’s mother-in-law, where the applicant’s family lived at the time. The search was conducted in the applicant’s presence. The police seized the following amounts of money: UAH 76,020 and 1,890 euros (EUR). Furthermore, a certain amount of US Dollars (USD) was seized: according to the applicant, it was equal to USD 20,786, whereas, according to the case-file materials (namely, the search report of 9 July 2008 and the seizure order of 18 September 2008 – see below), that amount was equal to USD 25,786. The applicant alleges that the police seized all the money found in the house, in spite of her arguments that she had her own income being a private notary and that she needed at least some money for the her own and her children’s subsistence. As further submitted by the applicant, the above-mentioned search was conducted on the basis of a search warrant of 5 July 2008, which allegedly only mentioned USD 5,000. The case file before the Court does not contain a copy of that search warrant.
On the same date, 9 July 2008, the police seized UAH 202,600 found in Mr Kibalnyy’s briefcase during the search in his car, as well as UAH 1,400 found in his pocket.
On 18 September 2008 the investigator of the Prosecutor General’s Office issued a seizure order in respect of the accused’s property (money). It stated that the bribe money (USD 5,000 and UAH 202,600) had been attached as material evidence in the proceedings. As regards the other money, which had been seized at Mr Kibalnyy’s place of residence (the amounts referred to in the investigator’s order were the following: USD 20,786, EUR 1,890 and UAH 56,020), the investigator found that it belonged to Mr Kibalnyy, given that since 9 July 2009 nobody from the accused’s family members had claimed that money. Accordingly, the investigator ordered seizure of the mentioned money with a view to securing a possible penalty of confiscation, which could be imposed on Mr Kibalnyy at the outcome of the criminal proceedings.
In her application before the Court, the applicant contested the veracity of the investigator’s statement and argued that she had consistently claimed her title to one half of the family’s money. She also observed that the seizure order erroneously referred to UAH 56,020 instead of UAH 76,020.
On 9 June 2009 the applicant initiated civil proceedings before the Pavlograd Town Court (“the Pavlograd Court”) seeking to have her right to one half of the marital property recognised and the seizure order lifted for that part of the property. The applicant enclosed her tax returns for the period from 2005 to 2008 showing her income as a private notary (varying from UAH 199,155 in 2005 (which at the time was equivalent to about EUR 33,000) to UAH 258,455 in 2008 (that being equivalent to about EUR 23,000).
On 21 September 2009 the Pavlograd Court stayed the civil proceedings pending the entry into force of a judgment in the criminal proceedings against the applicant’s husband. On 28 December 2009 and 4 June 2010 the Dnipropetrovsk Regional Court of Appeal and the Supreme Court, respectively, upheld that decision.
According to the applicant’s letter to the Court of 14 May 2018, there were no further procedural developments of relevance.
B. Relevant domestic law
Article 125 of the Code of Criminal Procedure (“the CCP”) 1960, which was in force at the material time (it was repealed with effect from 19 November 2012), stipulated, in particular, that it was the investigator’s obligation to take necessary measures with a view to securing a possible penalty of confiscation imposed at the outcome of criminal proceedings. Article 126 of the CCP 1960 regulated the procedure for securing possible confiscation. It stipulated that this was to be achieved by seizure of assets, valuables and other property of an accused or a suspect, or other persons who could be held materially liable for his/her actions. Under the CCP 1960, third parties whose interests were affected by seizure and/or confiscation in criminal proceedings, had no standing and no procedural rights within those proceedings.
According to the new CCP enacted on 19 November 2012 as amended on 18 February 2016, third parties whose interests are affected by seizure and/or confiscation in criminal proceedings are full-fledged participants of criminal proceedings vested with vast procedural rights.
COMPLAINTS
The applicant complains that her property rights under Article 1 of Protocol No. 1 were violated. She further complains, in substance, that it has been impossible for her to get back her half of the marital assets seized within the criminal proceedings against her husband.
QUESTIONS TO THE PARTIES
Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?
If so, was that interference 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?
In particular, did that interference impose an excessive individual burden on the applicant (see, for example, JGK Statyba Ltd and Guselnikovas v. Lithuania, no. 3330/12, 5 November 2013, and Džinić v. Croatia, no. 38359/13, 17 May 2016)?
Did the applicant have at her disposal an effective domestic remedy for her complaint under Article 1 of Protocol No. 1, as required by Article 13 of the Convention?
The Government are also invited to provide factual information as regards the developments in the criminal proceedings against the applicant’s husband in so far as the seizure of the family assets was concerned, as well as to provide copies of the relevant documents, including all the motions submitted by the applicant. The Government are also invited to clarify whether the applicant has been able to enter in the proceedings as “a third party whose interests are affected by seizure and/or confiscation in criminal proceedings” under the Code of Criminal Procedure 2012 (as amended on 18 February 2016).
Leave a Reply