European Court of Human Rights

FIFTH SECTION

CASE OF VLASENKO v. UKRAINE

(Application no. 17863/13)

JUDGMENT
 

STRASBOURG

3 February 2022

This judgment is final but it may be subject to editorial revision.

In the case of Vlasenko v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

  Ivana Jelić, President,
  Ganna Yudkivska,
  Arnfinn Bårdsen, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no.   17863/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on 12 March 2013 by a Ukrainian national, Mr Sergiy Volodymyrovych Vlasenko, born in 1967 and living in Kyiv ("the applicant") who was represented by Mr M. Tytarenko, a lawyer practising in Kyiv;

the decision to give notice of the complaints concerning the prosecution authorities' access to the applicant's banking documents and a ban on his travelling abroad to the Ukrainian Government ("the Government"), represented by their then Agent, Mr Ivan Lishchyna; the decision to strike out the complaint on the allegedly unlawful termination of the applicant's parliamentary mandate and unfairness of the related administrative proceedings; as well as the decision to declare inadmissible the remainder of the application;

the decision not to admit the Government's belated observations to the case file;

the applicant's observations;

Having deliberated in private on 13 January 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT-MATTER OF THE CASE

1.     The case mainly concerns the prosecution authorities' access to the applicant's banking documents, allegedly in breach of Article 8 of the Convention, and a ban on his travelling abroad, allegedly contrary to the requirements of Article 2 of Protocol No.  
4.

2.     At the material time the applicant was a Member of Parliament (MP) enjoying, under the domestic law, immunity against any "measures restricting the MP's rights and freedoms" without a prior consent of the Parliament to bringing him to criminal liability.

3.     Having lost a civil dispute [1] to his former spouse, Ms. O., the applicant was obliged, by the judgment of the Kyiv District Pecherskyy Court ("the Pecherskyy Court") of 21 February 2012 ("the judgment"), which became final on 31 October 2012 [2] , to pay her 125,000   Ukrainian hryvnias (UAH) [3] .

4.     On 23 November 2012 the Pecherskyy Court, without informing the applicant, banned him from travelling abroad at the bailiff's request, "with a view to ensuring the enforcement of the judgment and preventing [the applicant] from evading its enforcement by leaving the territory of Ukraine" [4] .

5.     Relying on the above ruling, on 14 December 2012 the State Border Service did not allow the   applicant   to board a   flight from Kyiv to Strasbourg, even though he invoked his MP immunity.

6.     On 18 December 2012 criminal proceedings were instituted against the applicant on suspicion of deliberate non-compliance with the judgment.

7 .     On 26 December 2012 the applicant transferred the amount due under the judgment, plus the enforcement fees, to the Bailiffs Service's bank account.

8.     By the final rulings of 16 and 23 January 2013, the investigating judge of the Pecherskyy Court granted the investigator's applications for temporary access, for thirty days and fourteen days respectively, to virtually all banking documents of the applicant in two banks for the entire period of the existence of his accounts there. Referring to "sufficient grounds for considering that there was a real risk of modification or destruction of the required information", the judge held that the matter was to be examined without summoning the applicant.

9.     Under Article 159 of the Code of Criminal Procedure ("the CCP"), 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 was provided on the basis of a ruling of an investigating judge or a court (§   2). Article 162 of the CCP listed items and documents constituting legally protected secrets. Data protected by bank secrecy was among them (§   5). Under Article   163 of the CCP, 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 possession they were (§   2). That article   also 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).

10.     The applicant's application, which he lodged on 21 January 2013, for a review of the 16 January 2013 ruling in the light of the fact that he had fully complied with the judgment, apparently remained disregarded.

11.     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, even though the applicant produced documentary evidence proving the payment of the debt by him.

12.     On 28 February 2013 the Bailiffs Service transferred the money paid by the applicant to Ms O.'s bank account.

13.     On 5 March 2013 the criminal proceedings against the applicant were discontinued for the absence of constituent elements of a crime in his actions.

14.     On 13 March 2013 the State Border Service did not allow him to board a flight to Brussels on the same grounds as before.

15.     On 5 April 2013 the Bailiffs Service issued a ruling to the effect that the enforcement had been completed, and on 9 April 2013 the Pecherskyy Court lifted the ban on the applicant's travelling abroad.

THE COURT'S ASSESSMENT

1. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

16.     The applicant complained that the prosecution authorities' access to his banking documents, undertaken within the criminal investigation into his supposed non-compliance with a judicial debt vis-à-vis his former spouse after he had voluntarily paid it in full, was unlawful and arbitrary.

17.     The Government did not submit observations within the time-limit set for this purpose.

18.     The Court has held that information retrieved from banking documents   undoubtedly amounts to personal data concerning an individual, irrespective of it being sensitive information or not (see M.N. and Others v.   San Marino , no.   28005/12, § 51, 7 July 2015). It follows that the prosecutorial measure complained of constituted an interference with the applicant's right to respect for private life. Article 8 of the Convention is therefore applicable.

19.     The Court further notes that this complaint is neither manifestly ill - founded nor inadmissible on any other grounds listed in Article   35 of the Convention. It must therefore be declared admissible.

20.     The general principles can be found, in particular, in M.N. and Others (cited above, §§ 71-73).

21.     The Court discerns indications of arbitrariness of the measure complained of in the present case, which are sufficient for finding a violation of Article 8 of the Convention without undertaking a detailed analysis of all the elements of the usual test under that provision, also taking into account that the Government did not provide the Court with any relevant information or observations.

22.     The investigator's temporary access to the applicant's banking documents was ordered in the context of the criminal investigation into the applicant's non-compliance with the judgment of 21   February 2012 after he had voluntarily and fully complied with it by 26 December 2012 (see paragraph 7 above). That essential fact was not, however, mentioned in the investigator's applications or the judge's rulings granting them. This means that they either did not know about it (which could not be the case at least after 21 January 2013, when the applicant tried to challenge the first ruling) or did not consider it relevant. Whatever the explanation, this omission suggests that the measure was not justified. The judgment obliging the applicant to pay a debt to his former spouse following the matrimonial property division dispute remained unenforced for several months. It is not the Court's task to assess whether that justified the institution of criminal proceedings against the applicant. What matters for the analysis of the applicant's complaint under Article 8 of the Convention is the absence of any explanation, both in the investigator's applications and the judge's rulings granting them, as to what kind of evidence related to the charge of "deliberate non-compliance with a judgment" it had been expected to collect from the applicant's banking documents and, moreover, why the investigator required access to virtually all such documents for the entire period of the existence of the applicant's bank accounts. Likewise, the judge's decision to examine the investigator's applications without summoning the applicant on the grounds of "a real risk of modification or destruction of the required information" was inexplicable.

23.     In such circumstances, the Court concludes that the interference was not justified and that the applicant did not have any sufficient and adequate guarantees against arbitrariness, including the possibility of an effective control of the measure at issue.

24.     There has therefore been a violation of Article 8 of the Convention.

2. ALLEGED VIOLATION of article 2 of protocol no. 4

25.     The applicant complained that the ban on his travelling abroad had been in breach of his MP immunity and that, in any event, it had been entirely unjustified.

26.     The Government did not submit observations within the established time-limit.

27.     Given that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article   35 of the Convention, the Court declares it admissible.

28.     The relevant general principles are summarised, for example, in De   Tommaso v. Italy ([GC], no. 43395/09, § 104, 23 February 2017) and Battista v. Italy (no. 43978/09, §§   37-38 and 41-42, ECHR 2014).

29.     In the present case the applicant was banned from travelling abroad during the period from 23 November 2012 to 9 April 2013 "with a view to ensuring the enforcement of the judgment", which he enforced in full on 26   December 2012. Noting that the Government did not provide the Court with any relevant information or observations, this fact is sufficient for the Court to conclude that the ban was entirely arbitrary after that date. As regards its compliance with Article 2 of Protocol No. 4 in so far as the earlier period is concerned, the Court observes that the domestic authorities never sought to explain how the travel ban might help recover the debt, having regard to the applicant's particular situation and other specific circumstances of the case (see Battista , cited above, §§ 41-42, and Stetsov v. Ukraine , no. 5170/15, §   31, 11 May 2021). Nor was the   travel ban based on an analysis as to whether the applicant's conduct and attitude gave reasons to believe that he would evade payment if allowed to leave the country (see Riener v. Bulgaria , no.   46343/99, §§  
126 - 27, 23 May 2006).

30.     In the light of the foregoing considerations and regardless of the applicant's additional arguments, the Court finds that there has been a violation of Article   2 of Protocol No. 4.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

31.     The applicant claimed 638,880 euros (EUR) in respect of pecuniary damage, with the reference to the allegedly unfair outcome of the matrimonial property division dispute with his former wife.

32.     The Government contested that claim.

33.     The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects the applicant's claim for just satisfaction.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;
2. Holds that there has been a violation of Article 8 of the Convention;
3. Holds that there has been a violation of Article 2 of Protocol No. 4;
4. Rejects the applicant's claim for just satisfaction.

Done in English, and notified in writing on 3 February 2022, pursuant to Rule  
77   §§   2 and 3 of the Rules of Court.

  Martina Keller   Ivana Jelić
  Deputy Registrar   President

[1] Related to the matrimonial property division.

[2] It had, however, become legally enforceable on 14 August 2012 once upheld on appeal. The enforcement had been stayed during the period from 3 to 31 October 2012, when the applicant's appeal on points of law was pending.

[3] Equivalent to about 11,500 euros at the material time.

[4] The domestic legislation relevant to this matter is summarised in Stetsov v. Ukraine (no.   5170/15, §§ 15 and 17-18, 11 May 2021).