Communicated on 24 February 2016
FIFTH SECTION
Application no. 43104/04
Mykola Vasylyovych NEDILENKO and others
against Ukraine
lodged on 25 November 2004
STATEMENT OF FACTS
The three applicants in the present case are Mykola Vasylyovych Nedilenko, Oksana Vasylivna Zagarovska and Mariya Volodymyrivna Pylypchuk. They were born in 1956, 1962 and 1974 respectively. The applicants are all Ukrainian nationals and reside in Ivano-Frankivsk, Ukraine.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Criminal proceedings against the first applicant
At the material time, the first applicant was the head of a local branch of a private bank, U.
In March 2001 criminal proceedings were instituted against him for abuse of power.
On 21 March 2001 a search was conducted in an apartment which allegedly belonged to the first applicant’s partner (the second applicant), and in the first applicant’s apartment, where the third applicant was living at the time with her daughter, a minor. Some items of property and documents belonging to the first applicant were seized in both apartments. On the same day the first applicant was taken to a police station and questioned.
On 3 April 2001 the first applicant was arrested and detained until 11 July 2001.
On 6 February 2004 the Ivano-Frankivsk Court of Appeal fined the first applicant 600 Ukrainian hryvnias (UAH) (around 87 euros (EUR)) for forging a loan agreement. It acquitted him of other charges and dispensed him from paying the fine because the penalty had become time-barred.
On 8 June 2004 the Supreme Court of Ukraine upheld that decision and it became final. The first applicant sought review of his sentence on numerous occasions, but to no avail.
2. Compensation proceedings
In July 2004 the applicants instituted proceedings in the Ivano-Frankivsk Town Court against various State bodies, claiming compensation for damage allegedly inflicted on them in the course of the criminal proceedings against the first applicant.
In 2006 their cases were separated.
(a) The first applicant’s case
The first applicant lodged a large number of complaints. He complained that his personal belongings (perfume, suits and personal documents) had been seized unlawfully following searches that had also been unlawful; that he had been arrested while being ill; that his detention had been unlawful; that the conditions of his detention had been inappropriate and that his complaints in that regard had been ignored; that his telephone had been tapped; that the investigation had been marked by numerous other shortcomings and that he had been convicted unlawfully.
He requested that the court “declare that the court and State bodies have unlawfully used the first applicant’s conviction against him; to find that the investigating authorities had acted unlawfully in his case; to secure the applicants’ safety; to publish a statement denying that he had committed serious crimes; to reinstate him in his position; to return the documents and property that had been seized from him; and to pay him compensation”.
On 26 December 2008 the court dismissed his complaints, finding that the first applicant had been lawfully convicted and that there was no legal basis for the State to pay him any compensation in such circumstances.
On 20 May 2009 the Ivano-Franskivsk Court of Appeal quashed that decision in part, awarding the first applicant UAH 7,250 (at the material time around EUR 700) in compensation for pecuniary and non-pecuniary damage caused by the unlawful seizure of his property (12 bottles of perfume, 12 suits and various documents). The court also ordered the prosecutor’s office to return the items seized from the first applicant. On 17 February 2010 the Supreme Court upheld that decision. It is unclear whether the decision of 20 May 2009 was enforced.
On 2 December 2010 the Ivano-Frankivsk Court of Appeal dismissed the first applicant’s application for an order to increase the compensation award.
(b) The second applicant
The second applicant complained that the police had unlawfully searched her apartment; that she had been unlawfully called in for questioning; that the police had wanted to search her mother’s house; had tapped the second applicant’s telephone; and had spied on her.
On 12 March 2008 the Ivano-Frankivsk Town Court dismissed the second applicant’s complaints. It found that the second applicant had failed to substantiate the legal basis for her claim.
On 27 May and 18 August 2008 that decision was upheld by higher courts.
(c) The third applicant
The third applicant complained about the search of the apartment where she lived.
On 6 March 2008 the Ivano-Frankivsk Town Court terminated proceedings in the case because in 2006 the third applicant had lodged “complaints about unlawful acts by the State authorities”. That meant the case had to be examined under administrative law procedures, in force as of September 2005, rather than under civil law.
On 15 April 2008 and 23 February 2009 that decision was upheld by higher courts.
3. Civil proceedings against the Ivano-Frankivsk Auditing Department
In October 2003 the first applicant instituted civil proceedings against the Ivano-Frankivsk State Auditing Department, claiming damages for allegedly unlawful acts by the Department in relation to the criminal proceedings against him. On 23 June 2005 the Ivano-Frankivsk Town Court found for the first applicant and awarded him UAH 20,000 in compensation for non-pecuniary damage as the audits of the applicant’s work had been marked by irregularities. On 16 December 2005 the Ivano-Frankivsk Court of Appeal upheld that decision. On 31 January 2006 the Supreme Court, following a cassation appeal lodged by the Auditing Department, stayed the enforcement proceedings. On 7 November 2007 the Rivne Regional Court of Appeal dismissed the Department’s appeal. On 27 November 2007 the enforcement proceedings were resumed. On 21 December 2007 the Ivano-Frankivsk Town Court, on an application by the Department, set a deadline of 30 June 2008 for enforcement of the decision of 23 June 2005. The applicant appealed against that decision, but as the deadline had been met by 24 April 2008 the enforcement proceedings were terminated on 6 May the same year.
COMPLAINTS
The first applicant complains under Article 8 of the Convention and Article 1 of Protocol No. 1 of the allegedly unlawful search of his apartment and that of the second applicant, where he was living at the material time. He also complains about the seizure of his property.
The second applicant complains under Article 8 of the Convention of the allegedly unlawful search of her apartment.
The third applicant complains under Article 8 of the Convention of the allegedly unlawful search of the apartment which belonged to the first applicant, and where she was living at the material time.
All the applicants also invoke Article 13 of the Convention in respect of their complaints.
The first applicant also complains under Article 6 of the Convention of the lengthy enforcement of the decision of 23 June 2005 in his favour.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicants’ right to respect for their home, contrary to Article 8 of the Convention, in respect of the searches conducted in their apartments in 2001?
2. Has there been an interference with the first applicant’s peaceful enjoyment of his possessions, within the meaning of Article 1 of Protocol No. 1? In particular, was that interference lawful and did it impose an excessive individual burden on the first applicant (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?
3. Did the applicants have at their disposal an effective domestic remedy for their Convention complaints, as required by Article 13 of the Convention?
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