FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

A pplication no. 40294/04 by Sergey Ivanovich TROTSKO against Ukraine

The European Court of Human Rights ( Fifth Section), sitting on 26 January 2010 as a Chamber composed of:

Peer Lorenzen , President, Renate Jaeger , Karel Jungwiert , Mark Villiger , Mirjana Lazarova Trajkovska , Zdravka Kalaydjieva , judges, Mykhaylo Buromenskiy , ad hoc judge, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 5 November 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, M r Sergey Ivanovich Trotsko , was a Ukrainian national who was born in 1959. He was Director General of Masa Invest Group, a Ukrainian company based in Zaporizhzhya . The applicant having died on 16 July 2009, his widow expressed the wish to pursue the application.

The facts of the case, as submitted by the applicant, may be summarised as follows.

A. Criminal proceedings against the applicant

Between 22 July 2002 and 2004, following a tax inspection of the above-mentioned company, which had revealed some violations of the tax legislation, the prosecution and tax authorities opened several criminal cases against the applicant on suspicion of tax evasion, property embezzlement, smuggling, unlawful opening and usage of foreign currency bank accounts, laundry of illegal funds, forgery, and abuse of office.

On 3 March 2003 the applicant was arrested. When arresting him the police allegedly withheld his two “Nokia” mobile phones, his “Rolex” watch and 200 US dollars.

On 3 May 2003 the applicant was released on bail of 30,000 Ukrainian hryvnias (UAH), deposited by a certain Ms M.

On 25 August 2004 the Ordzhonikidzevskyy District Court of Zaporizhzhya (“the Ordzhonikidzevskyy Court ”) discontinued all the criminal cases against the applicant. It ruled that the preventive measure applied to him be lifted and the bail be returned to the surety, and that the property and money withheld as material evidence be returned to their owners. The above-mentioned decision of the court was subject to immediate enforcement. According to the applicant, however, it remained unenforced. He complained about this to the prosecution and tax authorities.

B. The applicant ’ s hospitalisation

After the applicant ’ s release on bail and while the investigation was still going on, he failed to comply with a number of the investigator ’ s summonses on the ground of his frail health. As a result, the investigator applied to the Ordzhonikidzevskyy Court to have the preventive measure of bail replaced by detention.

The court decided that the applicant ’ s presence during the examination of the above application was obligatory, and on 12 August 2004 it ordered that he be arrested and brought to the court for that purpose.

On the following day the court ’ s ruling was implemented. The doctors who examined the applicant once he was arrested concluded that he was not fit for detention.

On 15 August 2004 he was placed in the Zaporizhzhya Regional Hospital for medical examination and treatment.

On 16 August 2004 the investigator additionally requested the court to have the applicant hospitalised with a view to a medical examination being carried out to establish his health condition.

On the same day the Ordzhonikidzevskyy Court rejected the investigator ’ s application as regards the applicant ’ s pre-trial detention, but allowed the request concerning his hospitalisation.

On 18 August 2004 the Zaporizhzhya Regional Court of Appeal quashed the above decision in the part concerning the applicant ’ s hospitalisation.

On 21 August 2004 the medical commission found, on the basis of the applicant ’ s medical documents, that although he suffered from certain heart conditions, he did not require inpatient treatment.

On 28 September 2004 the applicant challenged the above medical report before the Shevchenkivskyy District Court of Kyiv. There is no information about any further developments in this connection.

C. Search of the applicant ’ s house and his subsequent complaints

On 21 June 2004 the tax police conducted a search of the applicant ’ s house (sanctioned by the Ordzhonikidzevskyy Court on 18 June 2004). It took place in the presence of a friend of the applicant ’ s family, who had been entrusted to take care of it in the owners ’ absence. As it transpires from the search report, the police seized some documents, keys, note pads and hunting arms.

On 23 June 2004 the applicant complained to the Zaporizhzhya Regional Prosecutor ’ s Office about various procedural violations allegedly committed during the search. He contended, in particular, that the police had violently broken into the house (private property of his wife) in the absence of any representative of the family, and that following the search some property was found damaged and some valuables missing.

On 16 July 2004 the prosecutor informed the applicant, in response to the above complaint, that disciplinary action had been taken against one of the police officers involved on account of his rudeness and incorrect completion of the search report.

On 22 July 2004 the Regional Prosecutor ’ s Office issued a decision refusing to launch a criminal investigation into the applicant ’ s complaints, having found them unsubstantiated. It noted that the search had been held in compliance with the procedural rules, that the attested witnesses had been present during it, and that no money or valuables had been seized. It is not known whether the applicant challenged this decision before the higher-level prosecution authorities or the courts.

D. Police surveillance of the applicant

On 20 June 2003 the applicant complained to the Regional Prosecutor ’ s Office that he was under police surveillance, that his private telephones were tapped and that the police were putting pressure on his doctors.

On 17 July 2003 the prosecutor replied to the applicant that the police were acting in compliance with their duty to conduct a comprehensive criminal investigation and that there were no grounds for prosecution.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings against him and about the non-enforcement of the decision of the Ordzhonikidzevskyy Court of 25 August 2004.

He further complained under Article 8 that his right to respect for his private life and home had been violated in that criminal investigations had been unlawfully instituted against him, he had been placed under police surveillance and his phones had been tapped, he had been hospitalised against his will and subjected to dangerous medical procedures, his home had been searched on 21 June 2004, and he had not had an adequate response from the authorities to his related complaints.

Finally, the applicant complained under Article 1 of Protocol No. 1 that the property withheld at the time of his arrest and the bail paid for his release had never been returned to him and that some valuables had been stolen by the police during the search of his house .

THE LAW

1. The applicant complained that the police had failed to return to him his property withheld upon his arrest on 3 March 2003 despite the decision of the Ordzhonikidzevskyy Court of 25 August 2004 to that regard. He relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which read as follows in their relevant parts:

“Article 6 § 1 of the Convention

In the determination of his civil rights and obligations ... everyone is entitled to a fair hearing within a reasonable time by [a] ... tribunal...

Article 1 of Protocol No. 1 (protection of property)

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems 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.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of th is complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The Court has examined the remainder of the applicant ’ s complaints and considers that, in the light of all the materials in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Having regard to this finding, the Court does not consider it necessary to examine whether the applicant ’ s widow has standing to pursue these complaints.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examinati on of the applicant ’ s complaint under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 concerning the alleged failure of the police to return to him his property despite the existence of a binding judicial decision in that respect.

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President