CEDH · CASELAW;COMMUNICATEDCASES;ENG — 2 octobre 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 2 October 2018   FOURTH SECTION Application no. 22227/10 Sergiy Mykolayovych TERESHCHENKO against Ukraine lodged on 29 March 2010 STATEMENT OF FACTS The applicant, Mr Sergiy Mykolayovych Tereshchenko, is a Ukrainian national, who was born in 1974 and lives in Mykolayiv. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 19 July 2007 the applicant loaned 250,000 Ukrainian hryvnias (UAH) (at the time equal to about 35,500 euros (EUR)) to a certain K. On the same date they signed a pledge agreement, under which a tractor-trailer truck and a semitrailer belonging to K. would become the applicant’s property if the former failed to repay the loan to the applicant by 2 December 2007. Both above-mentioned contracts were drawn up in a simple written form and were not notarised. On 5 August 2007 the vehicle was involved in a particularly grave traffic accident that claimed six lives. The truck driver was suspected of having caused the accident, and the police seized the vehicle as material evidence. On 13 December 2007 the applicant brought civil proceedings against K. claiming title to the pledged property, given that K. had failed to repay the debt. On 3 April 2008 the Mykolayiv Zavodskyy District Court allowed the applicant’s claim. It recognised his title to the truck and its semitrailer 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. The judgment was not appealed against and became final. On 14 November 2008 the Vinnytsya City Court found the truck driver guilty of the accident. Given that he had been driving it with K.’s permission, but without any official documents in that regard, the court ordered K. to pay certain amounts of damages to the victims in allowing their civil claims. K. tried to convince the court that the truck could not be regarded as his property, given that he had leased it to a private company. However, in the absence of a notarised lease contract, the vehicle was considered as being K.’s property. There is no indication that K. informed the court of his pledge agreement with the applicant. The trial court ordered that the truck and the semitrailer be sold at auction and that the revenues from the sale be distributed among the victims. The applicant found out about those criminal proceedings at a certain point after the pronouncement of the judgment by the first-instance court and appealed. He submitted that, until then, he had not been aware of the criminal proceedings involving the vehicle. Relying on the judgment of 3   April 2008, the applicant claimed that the verdict was in breach of his property rights. He requested that the clause about the sale of the truck and the semitrailer be deleted from it. On 10 February 2009 the Vinnytsya Regional Court of Appeal refused to accept that appeal for examination. Relying in particular on Article 348 of the Code of Criminal Procedure (see “Relevant domestic law” below), it held that the applicant had not been a party to the proceedings and that he therefore had no right to lodge an appeal. On 30 September 2009 the Supreme Court upheld that ruling. On 18 November 2009 the truck and its semitrailer were sold at public auction. B.     Relevant domestic law Article 81 of the Code of Criminal Procedure (“the CCP”) 1960 (in force at the material time) stipulated that instruments of a crime belonging to the accused were to be confiscated. 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. COMPLAINTS Relying on Articles 6 § 1 and 13 of the Convention, as well as Article 1 of Protocol No. 1, the applicant complains that the domestic courts gave no assessment to the fact that it was him, but not K., who owned the vehicle in question and that its confiscation and sale breached his property rights. QUESTIONS TO THE PARTIES 1.     Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol   No.   1, on account of the confiscation of a truck with a semitrailer to which his title was established by the final decision of the Zavodskyy Court of 3   April 2008?   Has the applicant been deprived of his possessions in the public interest, and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No.   1?   If so, was that deprivation necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties?   2.     Did the applicant have access to a court as required by Article 6 § 1 in its civil limb to challenge the above-mentioned confiscation?   3.     Did the applicant have at his disposal an effective domestic remedy for his Convention complaints, as required by Article   13 of the Convention?