Published on 22 November 2021

FIFTH SECTION

Application no. 23896/20 Mykhaylo Mykhaylovych BEYLIN against Ukraine and 2 other applications (see list appended) communicated on 3 November 2021

SUBJECT MATTER OF THE CASE

The applications concern alleged incompatibility of covert investigative measures ( негласні слідчі (розшукові) дії ) to which the applicants were subjected with their rights guaranteed by Article 8 of the Convention in view of the alleged lack of adequate safeguards in the applicable law and the practical modalities of its implementation in their respective cases.

The first two applicants, Mr M. Beylin, a former adviser to the Head of the President’s Administration (application no. 23896/20) and Mr M. Berezkin, a former Member of Parliament (application no. 25803/20) are defendants in two different sets of ongoing criminal proceedings. Both sets concern, in substance, complex large-scale corruption schemes implicating numerous defendants.

The third applicant, Mr N. Kulchytskyy (application no. 31352/20) is a lawyer retained by the first two applicants and Mr T., one of Mr Berezkin’s co-defendants, in the aforementioned two sets of proceedings.

Between 16 and 21 December 2019 the applicants were notified by the investigative authority that covert investigation measures had been implemented in respect of the first two applicants and Mr T.; that the material collected had eventually not been used as evidence; and that it had therefore been destroyed. Mr Beylin was not given any further details as to the nature, scope or duration of the “covert investigative measures” applied in his respect. Mr Berezkin and Mr T. were informed that the “covert investigative measure” applied in their respect comprised interception of telecommunications. They were also advised of the dates and names of the courts which had authorised the interception and of the duration of the respective interception periods.

The three applicants filed numerous unsuccessful requests with law ‑ enforcement and judicial authorities seeking further information and access to the relevant court decisions and other pertinent documents, as well as demanding an explanation how the confidentiality of their lawyer-client communications was preserved in connection with the covert measures in issue. Between December 2019 and July 2020 these requests were turned down, essentially, as not based on law and concerning classified information.

The applicants allege breaches of Article 8 of the Convention on the grounds that no mechanism was available in law and in practice:

(a) enabling them to obtain sufficient information concerning the scope of the interference with their Article 8 rights in the course of application of the covert investigative measures;

(b) enabling them to challenge the lawfulness and necessity of those measures in their respective cases;

(c) ensuring that the courts performed the “necessity” analysis when examining the requests of investigative authorities to authorise the covert investigative measures and defining their scope, and, in particular, safeguarding the confidentiality of lawyer-client communications in the event when a disputed measure involved access to such communications;

To illustrate this allegation, the applicants provided copies of various court decisions authorising covert investigative measures in respect of Mr Beylin’s and Mr Berezkin’s co-defendants, which (unlike the decisions in their respect) were de-classified and stored in their respective criminal case-files and which contained little or no individualised reasoning;

(d) for the independent monitoring of the implementation of the covert investigative measures, and, in particular, of the protection of the confidentiality of the lawyer-client communications; and

(e) for precluding the law-enforcement officers from using an allegedly existing technical ability to access mobile telephone communication channels and intercept any mobile telephone communications of any person, without due procedural authorisation or supervision of any kind and without notifying the mobile telephone operators. The applicants allege that they are potential victims of such abuses, in particular, as two of them are defendants and the third one is a lawyer representing them in high-profile criminal proceedings. In support of their statement that there existed a technical ability for the officers to effect such uncontrolled interceptions, the applicants provided copies of several domestic judgments (unrelated to the present proceedings), convicting law enforcement officers for unauthorised interference with private telecommunications for ulterior motives. The applicants noted that the factual background of these judgments made it apparent that the officers had the technical tools to obtain direct and unsupervised access to private telecommunications.

QUESTIONS TO THE PARTIES

1. Have the applicants 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 there been a violation of the applicants’ right to respect for their private life or correspondence, contrary to Article 8 of the Convention?

The parties are invited, in particular, to comment on the following issues:

(a) What were the general safeguards in the applicable domestic legal framework protecting the applicants against abuse of power of the executive authorities in the context of carrying out covert investigative measures in their cases ( негласні слідчі (розшукові) дії ), in particular:

- as regards a possibility for individuals to obtain sufficient information concerning the measures affecting their Article 8 rights with a view to estimating that those measures were “lawful” and “necessary”;

- for challenging the lawfulness and necessity of such measures;

- for ensuring that the procedure for authorising covert investigative measures involved evaluation of their “necessity” as a pre-requisite for the authorisation;

- for ensuring independent monitoring and supervision of the implementation of the authorised covert investigative measures; and

- for ensuring protection of privileged lawyer-client communications in the context of authorisation and implementation of the covert investigative measures?

(b) Were the aforementioned legal safeguards fully implemented in practice in the applicants’ cases?

The Government are requested, in particular, to provide copies of the domestic decisions authorising covert investigative measures relevant to the applicants’ cases and other pertinent material from the domestic files.

(c) What are the technical modalities and traceability of access to the private mobile telecommunications by law-enforcement officers? Are they accompanied by sufficient procedural and other necessary safeguards against unauthorised monitoring of private mobile telecommunications?

3. Did the applicants have at their disposal an effective domestic remedy for their 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.

No.

Application no.

Case name

Lodge on

Applicant Year of Birth Place of Residence Nationality

Represented by

Notified of covert investigative techniques

1.

23896/20

Beylin v. Ukraine

22/05/2020

Mykhaylo Mykhaylovych BEYLIN 1977 Kyiv Ukrainian

Markiyan Volodymyrovych BEM

Nazar Stepanovych KULCHYTSKYY

21/12/2019

2.

25803/20

Berezkin v. Ukraine

26/06/2020

Maksym Stanislavovych BEREZKIN 1980 Kropyvnytskyy Ukrainian

Nazar Stepanovych KULCHYTSKYY

16/12/2019

3.

31352/20

Kulchytskyy v. Ukraine

22/07/2020

Nazar Stepanovych KULCHYTSKYY

1981 Kyiv Ukrainian

Markiyan Volodymyrovych BEM

Anastasiya Sergiyivna

NEKRASOVA

16/12/2019

21/12/2019