Communicated on 15 October 2020 Published on 2 November 2020

FIFTH SECTION

Application no. 17863/13 Sergiy Volodymyrovych VLASENKO against Ukraine lodged on 12 March 2013

STATEMENT OF FACTS

The applicant, Mr Sergiy Volodymyrovych Vlasenko, is a Ukrainian national, who was born in 1967 and lives in Kyiv. He is represented before the Court by Mr M. Tytarenko , a lawyer practising in Kyiv.

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

By the judgment of the Kyiv District Pecherskyy Court (“the Pecherskyy Court”) of 21 February 2012, which was upheld by the Kyiv City Court of Appeal on 14 August 2012 and by the Higher Specialised Court for Civil and Criminal Matters (“the Higher Specialised Court”) on 31 October 2012, the applicant was ordered, in particular, to pay his former spouse, Ms O., 125,000 Ukrainian hryvnias (UAH) (equivalent at the material time to about 11,500 euros (EUR)).

The enforcement proceedings were ongoing from 14 August until 3 October 2012. Subsequently, they were stayed during the period from 3 to 31 October 2012, when the case was pending before the Higher Specialised Court, and were reopened thereafter.

On 23 November 2012 the Pecherskyy Court, following a hearing with the bailiff ’ s participation, but in the absence of the applicant or his lawyer, allowed the bailiff ’ s application for a ban on the applicant ’ s travelling abroad “with a view to ensuring the enforcement of the judgment of 21 February 2012 and preventing [the applicant] from evading its enforcement by leaving the territory of Ukraine”. That ban was applicable until the complete enforcement of the judgment in question.

On 14 December 2012 the State Border Service, relying on the above ruling, did not allow the applicant to board a flight from Kyiv to Strasbourg. The applicant unsuccessfully invoked his member-of-parliament status.

On 18 December 2012 criminal proceedings were instituted against the applicant on suspicion of non-enforcement of the Pecherskyy Court ’ s judgment of 21 February 2012.

On 26 December 2012 the applicant transferred UAH 137,500 to the Bailiffs Service ’ s bank account (UAH 125,000 was the amount payable to Ms O. and UAH 12,500 was the amount of the enforcement fee).

On 29 December 2012 the Bailiffs Service informed Ms O. that the amount due to her under the 21 February 2012 judgment was available at its bank account.

On 16 January 2013 the investigator in charge of the criminal proceedings against the applicant which had been instituted on 18 December 2012 (see above) applied to the Pecherskyy Court for temporary access to documents protected by bank secrecy concerning the applicant in the “F.” bank, in which the latter had a bank account.

On the same date the investigating judge of the Pecherskyy Court granted the investigator access, during a thirty-day period, to the following documents in the “F.” bank: all contracts and agreements signed between the applicant and the bank; the information on all flows of funds on the applicant ’ s accounts during the entire period of those accounts ’ existence; all receipts, letters of authority, checks and other documents on cash lodgements and withdrawals by the applicant, as well as all the documents regarding safe deposit boxes used by the applicant.

On 23 January 2013 the investigating judge of the Pecherskyy Court granted a similar application from the investigator in respect of banking documents regarding the applicant in the “O.” bank. This time the duration of access to documents was fourteen days.

The Pecherskyy Court ’ s rulings of 16 and 23 January 2013 were final and not amenable to appeal.

On 24 January 2013 the applicant was supposed to travel from Kyiv to Strasbourg as a member of the Ukrainian parliamentary delegation to the PACE. However, the State Border Service once again refused him the possibility to leave the Ukrainian territory, with the reference to the ruling of the Pecherskyy Court of 23 November 2013. The applicant produced the original banking documents proving his payment to the Bailiffs Service on 26 December 2012, but to no avail.

On 28 February 2013 the Bailiffs Service transferred to Ms O. ’ s bank account the UAH 125,000 paid by the applicant on 26 December 2012.

On 5 March 2013 the criminal proceedings against the applicant on suspicion of non-enforcement of a judicial decision were discontinued.

On 13 March 2013 the State Border Service did not allow the applicant to board a flight to Brussels for the same reason as before.

On 5 April 2013 the Bailiffs Service formally terminated the enforcement of the 21 February 2012 judgment.

On 9 April 2013 the Pecherskyy Court quashed its ruling of 23 November 2012 and lifted the ban on the applicant ’ s travelling abroad.

Under Article 159, temporary access to items and documents constituting legally protected secrets meant that the person in whose possession they were provided a party to criminal proceedings with the possibility to study them, make copies or seize them if an investigating judge or a court decided so (§ 1). Such temporary access to items and documents was provided on the basis of a ruling of an investigating judge or a court (§ 2).

Under Article 163, if a party to criminal proceedings applying for temporary access to items and documents constituting legally protected secrets proved the existence of sufficient grounds for considering that there was a real risk of modification or destruction of items and documents in question, an investigating judge could examine the application without summoning the person in whose possessi on they were (§ 2). Article 163 further stipulated that an investigating judge or a court delivered a ruling granting temporary access to items and documents constituting legally protected secrets if the applying party proved that information contained in those items and documents was of evidential value for the proceedings and that it was impossible to use other evidence instead (§ 6).

Under Article 377-1, the issue of temporary restriction on travelling abroad in respect of an individual debtor in the context of enforcement of a judicial decision was the competence of the court situated by the location of the respective unit of the State Bailiffs Service, upon an application from a bailiff approved by the head of that unit.

COMPLAINTS

The applicant complains of a violation of his right to respect for his private life under Article 8 of the Convention on account of the allegedly unlawful and excessive access of the prosecution authorities to his banking documents.

He also complains that the restriction on his travelling abroad was in breach of his right to liberty of movement under Article 2 of Protocol No. 4.

QUESTIONS TO THE PARTIES

1. Was there an interference with the applicant ’ s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention, on account of the prosecution authorities ’ acce ss to his banking documents? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

2. Was the ban on the applicant ’ s travelling abroad in compliance with Article 2 of Protocol No. 4?