Published on 22 November 2021

FIFTH SECTION

Application no. 53649/20 Tetyana Vitaliyivna VOYTENKO against Ukraine lodged on 12 November 2020 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 her, with her rights, in particular, under Article 8 of the Convention and alleged lack of effective remedies in this regard (Article 13 of the Convention).

The applicant, a District Court judge, is a defendant in ongoing criminal proceedings on charges of corruption.

In the course of the preparation for the trial, the applicant found out that some evidence against her had been collected as a result of covert investigation measures and that she had been subject to a series of such measures in 2017 and 2018 for a total period of about eight months. The measures had been authorised by an investigative judge and included, in particular, interception of mobile communications; monitoring of geolocation data; visual, audio and video surveillance in public places; as well as installation of audio and video surveillance devices in the applicant’s office. The texts of the relevant decisions taken by the investigative judge were declassified and made accessible to the applicant as part of the case file.

On 13 May 2020 the Higher Anticorruption Court refused to consider, in the course of the committal hearing, the applicant’s submissions contesting the lawfulness and necessity of the aforementioned covert measures. It noted, in particular, that while the Criminal Procedure Code envisaged a general possibility for criminal defendants to complain, in the course of the committal hearing, about various procedural decisions taken in the course of the pre-trial investigation, the decisions authorising covert investigative measures were, as such, not subject to appeal. The only appropriate way for addressing the applicant’s complaints was therefore to examine them as objections against the admissibility of evidence obtained as a result of covert investigative measures, which fell to be assessed during the trial.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, 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. Has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention (compare, for example, Zubkov and Others , cited above, §§ 103-10)?

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 her respect lawful and necessary in a democratic society?

4. Did the applicant have at her disposal an effective domestic remedy for her 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.