Published on 19 September 2022

FIFTH SECTION

Application no. 9166/14 GRATION TREYD, TOV against Ukraine lodged on 18 January 2014 communicated on 21 February 2022

SUBJECT MATTER OF THE CASE

The applicant company is a limited liability company specialising in CD ‑ ROM manufacturing. On 7 June 2013 an investigating judge of the Boryspil Town Court (“the Boryspil Court”) authorised a search in its premises in the context of a criminal investigation into suspected production of counterfeit CD-ROMs. The ruling also authorised the seizure of “items of relevance for the investigation”. Following the search on 14 June 2013, the police seized numerous equipment and materials related to CD-ROM production.

On 2 July 2013 the applicant company reclaimed its seized property before the Boryspil Court. It noted that, under Article 236 § 7 of the Code of Criminal Procedure (“the CCP”), if the seized property was not explicitly specified in the search and seizure warrant, it was considered as “temporarily withheld”. The applicant company also referred to Article 171 § 5 of the CCP stipulating that, if the prosecution authority did not apply for the property impoundment within a day after its temporary withholding, it was to be immediately returned to its owner. In the absence of such an application in the applicant company’s case, it argued that there were no legal grounds for the continued retention of its property. On 9 July 2013 the investigating judge, by a final ruling, allowed the applicant company’s claim, having upheld all its arguments, and obliged the investigator to return the property in question.

On 10 July 2013 the same judge, however, allowed the prosecutor’s application (lodged on that day) for the impoundment of that property with a view to its attachment as material evidence in the ongoing criminal proceedings, without commenting on the earlier ruling. The judge held that the matter was to be examined without the applicant company’s notification, given that the property in question was not “temporarily withheld”. The applicant company found out about the impoundment on 11 July 2013. Its attempts to challenge that measure were unsuccessful: on 17 July 2013 the investigating judge of the Boryspil Court [1] rejected its application for the impoundment lifting, and on 18 July 2013 the Kyiv Regional Court of Appeal rejected the applicant company’s appeal against the ruling of 10 July 2013. The applicant company’s arguments, notably about the unexplained contradiction between the rulings of 9 and 10 July 2013, were not addressed.

On 30 December 2013 the criminal investigation was discontinued for the lack of indication of a criminal offence. On 24 January 2014 the applicant company was informed thereabout, and shortly thereafter it got back its property. According to the applicant company, however, the continued retention of its equipment and production materials by the prosecution authorities had irreversible devastating consequences for its business activities.

The applicant complains that the retention of its property was in breach of Article 1 of Protocol No. 1. It also complains, relying on Article 6 § 1 of the Convention, that the impoundment-related judicial rulings ran counter the rule-of-law principle and were not accompanied by any procedural safeguards.

QUESTIONS TO THE PARTIES

1. Was there an interference with the applicant company’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?

2. Was the retention of its property by the prosecution authorities after 15 June 2013 lawful, regard being had, firstly, to the absence of the investigator’s application for impoundment within a day after the search and seizure, and, secondly, the investigating judge’s ruling of 9 July 2013 ordering the return of the property to the applicant company (see, mutatis mutandis , G.I.E.M. S.R.L. and Others v. Italy [GC], nos. 1828/06 and 2 others, § 302, 28 June 2018, and Pendov v. Bulgaria , no. 44229/11, §§ 42 ‑ 51, 26 March 2020)?

3. Were the related judicial proceedings on 10 July 2013 and later in compliance with the procedural obligations enshrined in Article 1 of Protocol No. 1?

4. Was the requisite fair balance between the demands of the general interest and the requirements of the protection of the applicant company’s right of property respected?

[1] The same judge who delivered the rulings of 9 and 10 July 2013.