FIFTH SECTION

DECISION

Application no. 22227/10 Sergiy Mykolayovych TERESHCHENKO against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 11 February 2020 as a Committee composed of:

Yonko Grozev, President, Ganna Yudkivska, Lado Chanturia, judges, and Milan Blaško, Deputy Section Registrar ,

Having regard to the above application lodged on 29 March 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

The applicant, Mr Sergiy Mykolayovych Tereshchenko, is a Ukrainian national who was born in 1974 and lives in Mykolayiv. He was represented before the Court by Mr Y. Sakara, a lawyer practising in Mykolayiv.

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

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

2 . According to the applicant, on 19 July 2007 he loaned 250,000 Ukrainian hryvnias (UAH – at the time equivalent to about 35,500 euros (EUR)) to K. against collateral of an articulated lorry and its trailer. In substantiation, the applicant submitted a copy of the relevant loan agreement and the collateral agreement of that date. Under their terms, the articulated lorry and its trailer would become the applicant ’ s property if K. failed to repay the loan to him by 2 December 2007. Both agreements were drawn up in a simple written form and were not notarised.

3 . It appears that at the material time the vehicle was already leased by K. to a private company (see paragraph 11 below).

4 . On 5 August 2007 that vehicle was involved in a traffic accident that claimed six lives. The lorry driver, P., was suspected of having caused the accident, and the police seized the vehicle as material evidence.

5 . The Government suggested that the loan and the collateral agreements between the applicant and K. might have been signed at some point after that accident and post-dated to 19 July 2007, with a view to preventing the confiscation of the vehicle.

6 . On 13 December 2007 the applicant brought civil proceedings against K., claiming title to the collateral property, given that K. had not repaid the debt.

7 . On 11 January 2008 the Vinnytsya City Court (“the City Court”), which was dealing with the criminal proceedings against P. in respect of the traffic accident, ordered the impounding of the vehicle.

8 . On 3 April 2008 the Mykolayiv Zavodskyy District Court (“the Zavodskyy Court”) allowed the applicant ’ s civil claim against K. It recognised the applicant ’ s title to the lorry and its trailer and ordered K. to transfer them to the applicant. K. was present at the court hearing and did not object to the claim. It appears that the court was not aware of the accident involving the vehicle and the related criminal proceedings (see also paragraph 15 below). The judgment was not appealed against and it became final.

9 . On 25 April 2008 K., accompanied by a State bailiff, tried to recover the vehicle from the pound where it was kept. He presented himself as its owner to the pound attendant and relied on the above-mentioned judgment. K. ’ s request was turned down on the grounds that the vehicle had been seized within criminal proceedings.

10 . During one of the hearings before the City Court within the criminal proceedings, on 27 June 2008, a lawyer for one of the victims informed the court that he had found out by chance about K. ’ s attempt to recover the vehicle, as well as about the existence of the judgment of the Zavodskyy Court of 3 April 2008. He asked the City Court to add that judgment to the case file as evidence. The lawyer observed that K. had never mentioned it or his agreements with the applicant. The lawyer ’ s application was allowed.

11 . On 14 November 2008 the City Court found the driver, P., guilty in respect of the accident (see paragraph 4 above). It also ordered K., as the owner of the vehicle, to pay a certain amount in damages to the victims. K. tried to convince the court that the lorry could not be regarded as his property, given that he had leased it to a private company on 4 July 2007. However, in the absence of a notarised lease contract, the vehicle was considered to be K. ’ s property. The trial court ordered that the lorry and the trailer be sold at public auction and that the revenues be distributed among the victims.

12 . On 1 December 2008 the applicant lodged an appeal against the above-mentioned judgment. He submitted that, until that time, he had not been aware of the criminal proceedings involving the vehicle. Relying on the judgment of 3 April 2008 (see paragraph 8 above), the applicant claimed that the confiscation order had been in breach of his property rights.

13 . On the same date K. also lodged an appeal. He argued that it was not for him but for the company to which he had leased the vehicle to pay the damages to the accident victims. K. also submitted that the confiscated vehicle belonged to the applicant.

14 . On 10 February 2009, following a preliminary examination of the case, the Vinnytsya Regional Court of Appeal (“the Regional Court”) issued a ruling rejecting the applicant ’ s appeal without examining it on the merits. Relying in particular on Article 348 of the Code of Criminal Procedure in force at the time (see paragraph 23 below), it held that he had not been a party to the proceedings and therefore had had no right to lodge an appeal. On 30 September 2009 the Supreme Court upheld that ruling.

15 . On 12 February 2009 the Regional Court dismissed K. ’ s appeal. It held, in particular, that in the civil proceedings brought by the applicant (see paragraphs 6 and 8 above) K. had deliberately concealed from the Zavodskyy Court that the vehicle had already been encumbered both as material evidence and as confiscated property to pay the damages in the criminal proceedings against P.

16 . On 22 October 2009 the Supreme Court allowed K. ’ s appeal on points of law in part. It held that it had not been convincingly established who had to bear civil liability, K. or the company to which he had leased the vehicle. The Supreme Court therefore quashed the judgment of 14 November 2008 and the ruling of 12 February 2009 in so far as they concerned the civil claims and the issue of material evidence. The case was remitted to the first-instance court for fresh examination.

17 . On 18 November 2009 the lorry and its trailer were sold at public auction to a private person for UAH 90,500 (equivalent to about EUR 7,300).

18 . On 16 December 2009 the City Court issued a ruling ordering that the lorry and its trailer be returned to K. It relied on Article 81 of the Code of Criminal Procedure, which stipulated that money, valuables or other items, which had been the object of the offence ( objectum sceleris ), were to be returned to their legitimate owner or, if the owner had not been identified, the money or property in question was to be transferred to the State. According to the vehicle registration certificate, it belonged to K. The City Court therefore concluded that K. was the legitimate owner of that property and that it should be returned to him.

19 . On 21 December 2009 K. brought an action against P. and the applicant. He claimed that they should pay him, jointly, the amount for which the vehicle had been sold at public auction (see paragraph 17 above), as well as compensation for lost income (UAH 42,000). K. argued that, while P. was responsible for the accident, the applicant ’ s responsibility lied in having vouched for P.

20 . On 20 March 2010 the Mykolayiv Court allowed K. ’ s claim in the part pertaining to P. and ordered the latter to pay K. the amounts claimed. The court, however, dismissed K. ’ s claim in so far as it concerned the applicant. It held that there was no written proof that he had indeed vouched for P.

21 . Article 32 of the Code of Criminal Procedure (“the CCP”) 1960 (in force at the material time, and repealed with effect from 19 November 2012 ) contained definitions of various terms used in the CCP. It defined “parties to criminal proceedings” as follows: “an accused, a suspect, defence counsel, a victim, a civil claimant, a civil defendant, as well as their representatives”. “An appeal” and “an appeal on points of law” were defined as “an application by a prosecutor or a party to criminal proceedings for review of a judicial decision on appeal” or “on points of law”, respectively.

22 . Article 81 of the CCP provided that money, valuables or other items, which had been the object of the offence ( objectum sceleris ), were to be returned to their legitimate owner or, if the owner had not been identified, the money or property in question was to be transferred to the State. Any ownership-related disputes were to be dealt with in civil proceedings.

23 . Article 348 of the CCP stipulated that in criminal proceedings an appeal could be lodged by an accused, a victim, a convict, an acquitted person, a civil claimant or a civil respondent, a prosecutor who supported the charges or signed the indictment, a minor subjected to coercive educative measure by a court, the representative of a person subjected to coercive medical measures, and other persons in the cases envisaged by the Code.

24 . Under Article 359 of the CCP, appellate courts were to reject appeals without examining them on the merits if they had been lodged by someone who did not have the right to do so.

25 . Under the 1960 CCP, third parties whose interests were affected by seizure and/or confiscation in criminal proceedings had no standing and no procedural rights within those proceedings.

26 . In accordance with the new CCP enacted on 19 November 2012 (“the 2012 CCP”), as amended on 18 February 2016, third parties whose interests are affected by seizure and/or confiscation measures in criminal proceedings have become fully fledged participants of criminal proceedings and are vested with a variety of procedural rights.

THE LAW

27 . The applicant complained that the confiscation of the vehicle, to which his title had been established by the final decision of the Zavodskyy Court of 3 April 2008, had been in breach of his rights under Article 1 of Protocol No. 1 to the Convention. He also complained that he had had no access to a court, as required by Article 6 § 1 in its civil limb, to challenge the above-mentioned confiscation. Lastly, the applicant complained that he had not had at his disposal an effective domestic remedy for his above complaints, as required by Article 13 of the Convention.

28 . The Government argued that the applicant had failed to exhaust the domestic remedies available to him in Ukraine before lodging his application with the Court. They submitted that it had been open for him to bring proceedings for damages against K. for breach of the collateral agreement, or for his failure to repay the debt to the applicant, or with a view to recovering the value of the confiscated vehicle. Alternatively, the Government maintained, the applicant could have sought invalidation of the public auction of 18 November 2009.

29 . The Government further submitted that the applicant ’ s complaint under Article 1 of Protocol No. 1 should be declared inadmissible either as being incompatible ratione materiae with the Convention provisions or as being manifestly ill-founded. They contended t hat the judgment awarding the applicant the vehicle had been obtained by deception on the part of K. and, in all probability that of the applicant. Therefore, the Government considered, the applicant could not, for the purposes of Article 1 of Protocol No. 1, be deemed to have had “existing possessions” or a claim amounting to a “legitimate expectation” within the meaning of the Court ’ s case-law.

30 . The Government also submitted that, as suggested by the facts of the case, the applicant had been fully aware of the criminal proceedings and the inherent encumbrances over the vehicle. He therefore could not have expected the execution of the judgment of 3 April 2008.

31 . Furthermore, the Government observed that the national legislation in force at the time provided an exhaustive list of persons who could lodge an appeal within criminal proceedings. The applicant was clearly not among them. Accordingly, the Government considered that his complaint under Article 6 § 1 of the Convention was manifestly ill-founded.

32 . Lastly, the Government suggested declaring inadmissible his complaint under Article 13 of the Convention on the same grounds.

33 . The applicant contested the above arguments. He insisted that there had already been a final judicial decision recognising his title to the vehicle , namely the judgment of the Zavodskyy Court of 3 April 2008. He therefore saw no point in seeking additional judicial decisions in that regard. The applicant observed that the courts dealing with the criminal case against P. had been aware of the above-mentioned judgment, but had disregarded it. He noted that, although his rights had directly been affected, he had had no say in those proceedings.

34 . The Court does not consider it necessary to examine the objections raised by the Government, as the application is in any event inadmissible for the following reasons.

35 . The Court refers to Article 35 § 1 of the Convention, which reads as follows:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

36 . The six-month rule is a public policy rule and, consequently, the Court has jurisdiction to apply it of its own motion, even if the Government have not raised that objection (see Sabri Güneş v. Turkey [GC] , no. 27396/06 , § 29, 29 June 2012).

37 . The object of the six-month time-limit under Article 35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see, amongst other authorities, Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 156, ECHR 2009, and Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000 ‑ I).

38 . As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Varnava and Others, cited above, § 157, and Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002). In the event of a continuing situation, the six-month period runs from the cessation of that situation (see Koval v. Ukraine (dec.), no. 65550/01, 30 March 2004). The concept of a “continuing situation” refers to a state of affairs in which there are continuous activities by or on the part of the State which render the applicant a victim (see Posti and Rahko v. Finland , no. 27824/95, § 39, ECHR 2002 ‑ VII). Complaints which have as their source specific events which occurred on identifiable dates cannot be construed as referring to a continuing situation, even if those events had enduring effects for the applicant (see Camberrow MM5 AD v. Bulgaria , (dec.), no. 50357/99, 1 April 2004, and Meltex Ltd v. Armenia (dec.), no. 37780/02, 27 May 2008). A deprivation of ownership or of another right in rem is in principle an instantaneous act and does not produce a continuing situation of “deprivation of a right” (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000 ‑ XII).

39 . Turning to the present case, the Court notes that the applicant ’ s complaints concerned the confiscation order made by the City Court ’ s judgment of 14 November 2008. Even though that measure undoubtedly had enduring effects for the applicant, there is no indication of a “continuing situation” under the circumstances (compare TK Sklo, Tov v. Ukraine (dec.) [Committee], no. 69758/10, 8 January 2019). As the applicant admitted himself, he had no standing in the criminal proceedings in question. As provided, in particular, in Articles 32 and 348 of the CCP 1960, which was in force at the material time, an appeal or appeal on points of law could be lodged by a party to the criminal proceedings only. The list of such parties was exhaustive: an accused, a suspect, a defendant, a victim, a civil claimant, a civil defendant, as well as their representatives (see paragraphs 21 and 23 above). Obviously, the applicant did not fit any of those categories.

40 . It was only after the entry into force of the new CCP on 19 November 2012 and its further legislative amendments of 18 February 2016 when third parties whose interests were affected by seizure and/or confiscation in criminal proceedings became fully fledged parties to criminal proceedings and were vested with all the procedural rights required for protection of their legitimate interests (see paragraph 26 above).

41 . It follows that the applicant ’ s attempts to challenge the impugned confiscation order were doomed to fail and that he ought to have known that given the public nature of the applicable legal provisions. Moreover, his complaint under Article 13 of the Convention (see paragraph 27 above) suggests that he did know about the absence of any effective remedies in his case. The fact that that order had eventually been set aside (see paragraph 18 above) had no direct consequences for the applicant, as he still had no procedural status in the proceedings in question and the City Court ordered the property to be returned to K., considering him rather than the applicant to be is legitimate owner. In so far as K. ’ s obligations vis-à-vis the applicant were concerned and whether he complied with them, these issues lie beyond the scope of the present application.

42 . Accordingly, the six-month time-limit should be calculated from the date when the applicant became aware of the alleged interference with his property rights, namely from 1 December 2008 at the latest (see paragraph 12 above). He introduced his application a year and almost four months after that date, which is outside the six-month time-limit under Article 35 § 1 of the Convention. It must therefore be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 5 March 2020 .

Milan Blaško Yonko Grozev Deputy Registrar President