Published on 22 November 2021

FIFTH SECTION

Application no. 36618/14 Pavel Aleksandrovich VYKHOR against Ukraine lodged on 30 April 2014 communicated on 3 November 2021

SUBJECT MATTER OF THE CASE

The application concerns alleged incompatibility of covert investigative measures ( негласні слідчі (розшукові) дії ) to which the applicant was subjected within the framework of criminal proceedings against him with his rights under Article 8 of the Convention, an alleged lack of effective remedies in this regard, and alleged excessive length of the criminal proceedings against the applicant (Article 6 of the Convention).

The applicant, a lawyer, is a defendant in criminal proceedings on charges of inciting his client to pay a bribe to a judge. The proceedings were initiated on 28 May 2013 and are currently pending at first instance.

In the course of the preparation for the trial, the applicant found out that some evidence against him had been collected as a result of covert investigation measures (i.e., interception of mobile telecommunications and visual, audio and video surveillance of the applicant in public places). These measures had been authorised on 23 May 2013 for a period of sixty days by an investigative judge of the Donetsk Regional Court of Appeal.

The applicant’s cassation appeal against that decision was rejected by the Higher Specialised Court (on 28 February 2014) on the ground that the respective decision was not subject to appeal. The applicant also unsuccessfully attempted to file disciplinary complaints against the investigative judge and to institute various sets of proceedings against her and the law-enforcement officers involved in his case. He alleged, in particular, that the decision of 23 May 2013 had been taken in breach of the applicable law, before the criminal proceedings against him had been formally instituted, and without any assessment of whether there was a reasonable suspicion that he had committed an offence. He also argued that an order for interception of his communications amounted to an arbitrary interference with confidentiality of his professional exchanges with his clients and other lawyers.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies for his complaint under Article 8, as required by Article 35 § 1 of the Convention (compare, for example, Zubkov and Others v. Russia , nos. 29431/05 and 2 others, §§ 88-99, 7 November 2017)?

2. Is the length of the criminal proceedings against the applicant in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

3. Has there been a violation of the applicant’s rights guaranteed by Article 8 of the Convention? In particular, were the covert investigative measures ordered in his respect lawful and necessary in a democratic society? The parties are invited to comment, inter alia , on the following issues:

(a) Does the national legal framework contain specific safeguards for protecting confidentiality of lawyer-client communications in the context of interception of telecommunications (compare, for example, Dudchenko v. Russia , no. 37717/05, §§ 104-11, 7 November 2017)?

(b) If so, have these safeguards been properly implemented in the present case?

4. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 8, as required by Article 13 of the Convention?

In the affirmative, the Government are requested to provide examples of relevant case-law or other pertinent material.