Communicated on 22 May 2014

FIFTH SECTION

Application no. 40766/09 Mykola Fedorovych PESOTSKYY against Ukraine lodged on 15 July 2009

STATEMENT OF FACTS

The applicant, Mr Mykola Fedorovych Pesotskyy , is a Ukrainian national, who was born in 1956 and lives in Lugansk, Ukraine.

A. The circumstances of the case

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

On 22 July 2005 the General Prosecutor ’ s Office (GPO) instituted criminal proceedings against the applicant, who, between 2003 and 2005, was the head of the State Committee on State Material Reserve ( Державний комітет України з державного матеріального резерву ) , upon suspicion of abuse of power.

On 6 September 2005 an investigation officer decided to attach the applicant ’ s property under Articles 125 and 126 of the Criminal Procedure Code (see below). It was noted that the applicant had been accused of causing damages in the amount of more than 36 million Ukrainian hryvnias .

On 19 October 2005 the Pecherskyy District Court of Kyiv quashed the decision of 22 July 2005 and remitted the case materials to the GPO for further investigation. On 29 December 2005 the Kyiv City Court of Appeal upheld the decision of the first instance court.

On 6 July 2006 the GPO informed the applicant that his property related complaints would be considered once a final decision in the case was taken by the investigation officer.

On 12 January 2007 the property attachment was lifted in respect of the applicant ’ s two cars.

In February 2008 the applicant requested the GPO to lift the attachment of his property. According to the applicant, no answer was received.

In February 2009 the applicant instituted proceedings in the Pecherskyy District Court challenging the decision of 6 September 2005.

On 25 March 2009 the court rejected the applicant ’ s request since “the judicial control over the investigation was limited”.

On 19 May 2009 the Kyiv City Court of Appeal upheld this decision stating that on 19 October 2005 the case had been sent back for additional investigation which was still underway. Moreover, the court had no jurisdiction over the issues of the property attachment.

On 7 July 2009 the attachment of the applicant ’ s property was lifted.

B. Relevant domestic law

In accordance with Article 125 of the Criminal Procedure Code in force at the material time, in cases, in which punishment included confiscation of property, the investigation officer should adopt a decision in view of ensuring the enforcement of the sentence.

Article 126 of the Code defined the procedure of ensuring civil suit and confiscation. It provided that ensuring a civil suit and confiscation of property be realized by attachment of bank deposits, valuables, and other property of defendant or suspect or the persons who bear material liability for his actions according to the law, as well as by way of seizure of property. Property attachment was annulled by a decree of criminal investigator when the application of this measure “becomes unnecessary”.

COMPLAINTS

The applicant complains under Article 1 of Protocol No. 1 that his property was unlawfully attached betw een 29 December 2005 and 7 July 2009. The applicant also complains under Articles 6 and 13 of the Convention about the impossibility to request that the attachment of his property be lifted.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the applicant unfairly denied access to court given the courts ’ refusal to examine his complaint about the attachment of his property?

2. Has there been an interference with the applicant ’ s peaceful enjoyment of possessions, within the meani ng of Article 1 of Protocol No. 1? If so, was that interference necessary to control the use of property in accordance with the general interest? In particular, did that interference impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V?