FIFTH SECTION

DECISION

Application no. 70170/10 Tatyana Nikolayevna KIBALNAYA against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 15 April 2020 as a Committee composed of:

André Potocki , President, Lәtif Hüseynov , Anja Seibert- Fohr , judges, and Victor Soloveytchik , Deputy Section Registrar ,

Having regard to the above application lodged on 20 November 2010,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms Tatyana Nikolayevna Kibalnaya , is a Ukrainian national who was born in 1968 and lives in Zaporizhzhya.

2 . The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna .

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

4 . In July 2008 criminal proceedings were instituted against the applicant ’ s husband, Mr Kibalnyy , the president of a local court at the time, who was suspected of bribe-taking. A number of searches were conducted in the family ’ s household and certain amounts of money were seized. According to the applicant, the police seized all the money found in the house, in spite of her arguments that she had her own income as a private notary and that she needed at least some money for her own and her children ’ s subsistence.

5 . On 18 September 2008 an investigator from the Prosecutor General ’ s Office issued a seizure order in respect of the accused ’ s money.

6 . 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 from that part of the property.

7 . 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.

8 . According to the applicant ’ s letter to the Court of 14 May 2018, there were no procedural developments of relevance from June 2010 onwards.

9 . However, as submitted by the Government and confirmed by the case-file material, there were certain important developments in the meantime.

10 . More specifically, on 28 April 2011 the applicant ’ s husband was declared wanted by the police. It was established that he was in the United Arab Emirates.

11 . On 20 February 2018 the United Arab Emirates ’ authorities extradited him to Ukraine.

12 . On 28 February 2018 Mr Kibalnyy was arrested upon his arrival in Ukraine.

13 . On 28 December 2018 the Kobelyaky Town Court delivered a judgment in Mr Kibalnyy ’ s case which, among other things, lifted the seizure.

14 . On 15 March 2019 the Poltava Court of Appeal upheld that judgment in so far as it concerned that particular issue.

15 . On 24 July 2019 all of the money which had been seized was returned to Mr Kibalnyy , and the applicant informed the Court of this on 31 July 2019.

16 . The relevant legal provisions are summarised in TK Sklo , TOV v. Ukraine (( dec. ) [Committee], no. 69758/10, 8 January 2019).

COMPLAINTS

17 . The applicant complained that the seizure of all the family assets in the context of the criminal proceedings against her husband had been in breach of her rights under Article 1 of Protocol No. 1 to the Convention. She also complained under Article 13 of the Convention that she had not had an effective domestic remedy in that regard.

THE LAW

18 . In their observations submitted on 23 April 2019, the Government referred to the fact that the criminal proceedings against Mr Kibalnyy had not yet been concluded by way of a final judicial decision, and that the applicant ’ s complaints should therefore be rejected as premature.

19 . Alternatively, they argued that there had been no violation of her rights. The Government observed that the duration of the impugned seizure was not attributable to the State, but had instead resulted from the applicant ’ s husband absconding for a lengthy period.

20 . The applicant disagreed. She maintained that the seizure had been arbitrary and that she had had no possibility to effectively challenge it. The applicant submitted, in particular, that at the material time she had had no standing and no procedural rights in the criminal proceedings against her husband. She further observed that her civil claim had not been examined on the merits pending the outcome of those criminal proceedings.

21 . Furthermore, she maintained that she had not been able to use her property for more than ten years, even though there had been no criminal charges against her.

22 . The parties ’ exchange of additional comments after the return of the seized money to the applicant ’ s family (see paragraph 15 above) was confined to the issue of pecuniary damage.

23 . The Court notes that, as the applicant admitted herself, it had been impossible for her to challenge the impugned seizure within the criminal proceedings against her husband. As to the civil claim brought by her, its examination depended on the outcome of the above-mentioned criminal proceedings and, in any event, could not lead directly to lifting the impugned seizure order which was the prerogative of criminal courts. It follows that the applicant ’ s complaint should have been submitted within six months of her becoming aware of the seizure order. Although it is not clear when exactly she became aware of that order, the facts of the case indicate that it was in early June 2009 at the latest (see paragraph 6 above). Accordingly, the applicant should have introduced her complaint no later than in December 2009. As this happened only in November 2010, the complaint at issue must be rejected as being lodged outside the six ‑ month time-limit (for a similar approach, see TK Sklo , T OV , cited above).

24 . In so far as the applicant can be understood to be complaining of the delay in the examination of her claim for her spousal share of the money which was seized (see paragraphs 6 , 7 and Error! Reference source not found. above ), the Court notes that the civil proceedings in question were stayed pending the outcome of the related criminal proceedings (see paragraph 7 above). In other words, the alleged violation of the applicant ’ s property rights can indeed be regarded as having been closely linked to the duration of the criminal proceedings against her husband and having been an indirect consequence of the duration of those proceedings (compare with JGK Statyba Ltd and Guselnikovas v. Lithuania , no. 3330/12, § 131, 5 November 2013).

25 . However, the Court finds convincing the Government ’ s argument that, in the circumstances, the length of the above-mentioned criminal proceedings was attributable to the conduct of the applicant ’ s husband, rather than any omissions or wrongdoings on the part of the State authorities. The applicant provided no information or arguments to the contrary.

26 . It is noteworthy that after the applicant ’ s husband had been extradited to Ukraine there were no delays in the criminal proceedings against him. The issue of the seized property was examined speedily and resulted in a favourable outcome for the applicant and her family, inasmuch as all the seized money was returned to them (see paragraph 15 above).

27 . It follows that this part of the application should be rejected as being manifestly ill-founded, in accordance with Article 35 § 3 (a) of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 11 June 2020 .

Victor Soloveytchik André Potocki Deputy Registrar President