Published on 3 July 2023

FIFTH SECTION

Application no. 10415/16 Mykhaylo Petrovych MISHCHENKO against Ukraine lodged on 9 February 2016 communicated on 16 June 2023

SUBJECT MATTER OF THE CASE

The application concerns the allegedly unlawful tapping of the applicant’s mobile telephone and his conviction for burglary and illegal drug activities mainly on the basis of the recordings of his telephone conversations, without any assessment of the lawfulness of the covert surveillance measure in question (Articles 6 and 8 of the Convention).

By a judgment of the Polonne Town Court of 20 November 2014, which was upheld by the Khmelnytskyy Regional Court of Appeal on 25 February 2015 and by the Higher Specialised Court for Civil and Criminal Matters on 20 August 2015, the applicant was found guilty of, in particular, burglary from a private house committed during the night of 2 to 3 July 2014, as well as an attempt to transfer drugs into a prison committed on 4 July 2014. The courts relied mainly on the covert recordings of the applicant’s telephone conversations at various times during the period from 1 to 4 July 2014. The applicant challenged that evidence arguing that there had been no legal basis for his telephone tapping. The courts’ response was limited to a reference to some information notes, according to which on 13 May and 5 June 2014 the Khmelnytskyy Regional Court of Appeal had authorised covert investigative (search) measures (проведення негласних слідчих (розшукових) дій) in respect of the applicant for a thirty-day period. The applicant has allegedly never seen those rulings. Nor were they included in the case file or studied by the courts during his trial.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention, on account of the domestic courts’ reliance on the recordings of his telephone conversations allegedly obtained unlawfully?

2. Has there been a violation of the applicant’s right to respect for his private life guaranteed by Article 8 of the Convention as a result of his telephone tapping by the police?