Published on 19 July 2021

FIFTH SECTION

Application no. 39488/15 Yevgen Sergiyovych MALYEYEV against Ukraine lodged on 4 August 2015 c ommunicated on 29 June 2021

SUBJECT MATTER OF THE CASE

The application concerns the allegations of the applicant, a practising lawyer at the time, under Article 5 § 1 of the Convention about being arrested in breach of the requirements of domestic law. It furthermore concerns his allegations under Article 8 and Article 1 of Protocol No 1 to the Convention regarding the seizure and retention of property and documents related to his professional activity.

On 5 March 2015 the applicant was arrested by the investigator on suspicion of a corruption-related offence. The relevant arrest report indicated that the applicant had been arrested whilst committing a crime or attempting to commit one, or immediately after a crime has been committed, following the statements of an eyewitness, including the victim, or following an indication of clear signs that the applicant has just committed a crime . The arrest report did not indicate more details explaining the reasons for the applicant ’ s arrest.

In the course of the arrest, a personal search of the applicant was carried out and certain property (among other things, a laptop, mobile phones, a key of a car, identity documents) and documents were seized from him. On the same day he was released without having been charged of any criminal offence. On the same day the Dniprovskiy District Court of Kyiv decided to confirm the seizure of these items as they could contain information indicating that the applicant or other persons could be involved in a corruption offence. In the course of the investigation the applicant attempted to reclaim the seized items, but the courts refused his requests, stating that the seizure of the items in question had been lawful and necessary for further investigation of the case. On 6 October 2016 the prosecutor terminated the criminal investigation against the applicant since no constituent elements of an offence were established. The prosecutor furthermore decided to return the seized items to the applicant. The applicant ’ s requests to reclaim the seized items after the termination of the criminal investigation were unsuccessful since, according to the authorities ’ replies, they needed more time to verify that the criminal investigation in question had indeed been terminated. The case-file does not contain any information whether the applicant resubmitted his request or whether he instituted judicial proceedings to reclaim the seized items and to receive compensation in connection with his criminal prosecution.

Referring to Article 5 § 1 of the Convention, the applicant complains that his arrest on 5 March 2015 was in breach of the procedural law, since no relevant reasons had been indicated in the arrest report.

The applicant furthermore complains that the seizure and retention of the property and documents from him, which were related to his professional activity, were in breach of the requirements of Article 8 of the Convention.

He also complaints under Article 1 of Protocol No 1 to the Convention that the lengthy retention of his property by the investigating authorities was unjustified and unnecessary.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty on 5 March 2015 in breach of Article 5 § 1 of the Convention? In particular, did the arrest report contain clear and sufficient reasons to arrest him (see Strogan v. Ukraine , no. 30198/11, § 88, 6 October 2016)?

2. Did the decision of the prosecutor of 6 October 2016 terminating the criminal proceedings against the applicant constitute a basis for him to claim compensation in respect of his complaints under Article 8 of the Convention and Article 1 of Protocol No 1 to the Convention ? The Government are invited to provide the Court with the relevant case-law examples showing the existence and effectiveness of a domestic remedy in the applicant ’ s case.

3. Has there been an interference with the applicant ’ s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 (see Golovan v. Ukraine , no. 41716/06, §§ 55-65, 5 July 2012)?

4. Has the applicant exhausted domestic remedies in respect of his complaints under Article 1 of Protocol No. 1 after the termination of the criminal proceedings against him on 6 October 2016? If so, h as the seizure of the applicant ’ s property on 5 March 2015 and the authorities ’ refusal to return this property to the applicant during the investigation and after its termination on 6 October 2016 been lawful within the meaning of Article 1 of Protocol no. 1 to the Convention? If so, did such seizure and retention impose an excessive individual burden on the applicant (see Zosymov v. Ukraine , no. 4322/06, § 76, 7 July 2016)?