Communicated on 14 November 2018<\/p>\n
FOURTH SECTION<\/p>\n
Application no. 70170\/10
\nTatyana Nikolayevna KIBALNAYA
\nagainst Ukraine
\nlodged on 20 November 2010<\/p>\n
STATEMENT OF FACTS<\/p>\n
The applicant, Ms Tatyana Nikolayevna Kibalnaya, is a Ukrainian national, who was born in 1968 and lives in Zaporizhzhya.<\/p>\n
A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n The facts of the case, as submitted by the applicant, may be summarised as follows.<\/p>\n At the time of the events the applicant\u2019s husband, Mr Yuriy Kibalnyy, worked as the President of the Yuryivka Town Court in the Dnipropetrovsk Region (\u201cthe Yuryivka Court\u201d). On 8 July 2008 criminal proceedings were instituted against him on suspicion of bribe-taking.<\/p>\n It appears from the case-file materials that in early July 2008 the police received a complaint that Mr\u00a0Kibalnyy 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\u00a0July 2008 the first part of the bribe, 5,000 US Dollars (USD), had been paid to Mr\u00a0Kibalnyy and that on 9\u00a0July 2008 the remaining amount of about 200,000 Ukrainian hryvnias (UAH) was to be paid to him.<\/p>\n On 9 July 2008 the police conducted a search in the house of the applicant\u2019s mother-in-law, where the applicant\u2019s family lived at the time. The search was conducted in the applicant\u2019s 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\u00a0September 2008 \u2013 see below), that amount was equal to USD\u00a025,786. 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\u2019s subsistence. As further submitted by the applicant, the above-mentioned search was conducted on the basis of a search warrant of 5\u00a0July 2008, which allegedly only mentioned USD 5,000. The case file before the Court does not contain a copy of that search warrant.<\/p>\n On the same date, 9 July 2008, the police seized UAH 202,600 found in Mr\u00a0Kibalnyy\u2019s briefcase during the search in his car, as well as UAH\u00a01,400 found in his pocket.<\/p>\n On 18\u00a0September 2008 the investigator of the Prosecutor General\u2019s Office issued a seizure order in respect of the accused\u2019s 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\u00a0Kibalnyy\u2019s place of residence (the amounts referred to in the investigator\u2019s order were the following: USD\u00a020,786, EUR 1,890 and UAH 56,020), the investigator found that it belonged to Mr\u00a0Kibalnyy, given that since 9 July 2009 nobody from the accused\u2019s 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\u00a0Kibalnyy at the outcome of the criminal proceedings.<\/p>\n In her application before the Court, the applicant contested the veracity of the investigator\u2019s statement and argued that she had consistently claimed her title to one half of the family\u2019s money. She also observed that the seizure order erroneously referred to UAH 56,020 instead of UAH 76,020.<\/p>\n On 9 June 2009 the applicant initiated civil proceedings before the Pavlograd Town Court (\u201cthe Pavlograd Court\u201d) 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\u00a033,000) to UAH 258,455 in 2008 (that being equivalent to about EUR\u00a023,000).<\/p>\n 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\u2019s husband. On 28 December 2009 and 4 June 2010 the Dnipropetrovsk Regional Court of Appeal and the Supreme Court, respectively, upheld that decision.<\/p>\n According to the applicant\u2019s letter to the Court of 14 May 2018, there were no further procedural developments of relevance.<\/p>\n B.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n Article 125 of the Code of Criminal Procedure (\u201cthe CCP\u201d) 1960, which was in force at the material time (it was repealed with effect from 19\u00a0November 2012), stipulated, in particular, that it was the investigator\u2019s 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.<\/p>\n According to the new CCP enacted on 19\u00a0November 2012 as amended on 18\u00a0February 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.<\/p>\n COMPLAINTS<\/strong><\/p>\n 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.<\/p>\n QUESTIONS TO THE PARTIES<\/strong><\/p>\n Has there been an interference with the applicant\u2019s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?<\/p>\n 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?<\/p>\n In particular, did that interference impose an excessive individual burden on the applicant (see, for example, JGK Statyba Ltd and Guselnikovas v.\u00a0Lithuania, no. 3330\/12, 5 November 2013, and D\u017eini\u0107 v. Croatia, no.\u00a038359\/13, 17\u00a0May 2016)?<\/p>\n 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\u00a013 of the Convention?<\/p>\n The Government are also invited to provide factual information as regards the developments in the criminal proceedings against the applicant\u2019s 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 \u201ca third party whose interests are affected by seizure and\/or confiscation in criminal proceedings\u201d under the Code of Criminal Procedure 2012 (as amended on 18\u00a0February 2016).<\/p>\n