Published on 18 September 2023

FIFTH SECTION

Application no. 26519/16 Olga Mykolayivna YAKYMCHUK against Ukraine lodged on 22 April 2016 communicated on 30 August 2023

SUBJECT MATTER OF THE CASE

The application concerns, in particular, the following complaints raised under Article 6 §§ 1 and 3(b), Article 8 and Article 13 of the Convention by the applicant, a former judge tried and convicted on two counts of bribery:

(a) that the length of the criminal proceedings against her (which lasted from 18 February 2009 until 27 October 2015 at three levels of jurisdiction) was inordinate;

(b) that the Rivne Regional Court of Appeal in the composition, which examined and dismissed on 26 December 2014 the applicant’s appeal against her conviction, did not qualify as “an independent and impartial tribunal established by law” as in the course of the examination of the case Judge Z., one of its three members, was replaced by Judge K. on the basis of an unclear procedure. In particular, the case-file contained no evidence that Judge K. was selected via the automatised random case assignment system as was required by Article 16-2 of the Code of Criminal Procedure (“CCP”) of 1960;

(c) that material obtained by the law-enforcement authority as a result of covert audio- and video-surveillance of the applicant’s office was used unfairly in prosecuting and convicting her, without proper assessment of her arguments concerning its inadmissibility as evidence collected unlawfully and in breach of her privacy rights. In particular, the applicant noted that the case-file contained no copy of a judicial warrant authorising the disputed surveillance measure. The first-instance court had concluded that the evidence had been collected lawfully relying on letters from the law-enforcement authority and the Zhytomyr Regional Court of Appeal from which it was apparent that a warrant had been issued within the framework of a certain case no. 1208 initiated under the Operative and search activity (OSA) Act ( Закон про оперативно-розшукову діяльність ) and had subsequently been destroyed as no longer necessary. The appellate instance, for its part, had concluded that the surveillance measure had been lawful after having examined the file of case no. 1208 in extra-procedural setting (in an office for “classified documents”) and without giving the applicant access to any of its material on the sole ground that OSA cases were as such classified. It was not apparent from the panel’s generic conclusion whether the file examined by them contained a copy of the original warrant; which surveillance measure had been authorised, on which basis, concerning which person, or for what period of time;

(d) in addition to the above, the courts unfairly used as evidence against the applicant an audio-recording of her conversation with I.P. (one of the purported bribe-givers), purposefully made by the latter on the instructions of the police. The higher courts had failed to address the applicant’s argument that the recording had to be excluded from evidence, in particular, in the light of the Constitutional Court’s judgment of 20 October 2011, in accordance with which use as evidence in criminal proceedings of a recording purposefully made by a private person not authorised to carry out OSA with a view to documenting an offence was unconstitutional;

(e) that the video- and audio-surveillance of the applicant’s office as well as the organisation by the law-enforcement authority of audio recording by I.P. of her conversation with the applicant, amounted to unlawful and disproportionate interference with the applicant’s right to private life;

(f) and that the applicant had no effective domestic remedies to complain about either the length of the criminal proceedings against her or the interference with her private life.

QUESTIONS TO THE PARTIES

1. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

2. Did the applicant have a fair hearing in the determination of the criminal charges against her, in accordance with Article 6 of the Convention?

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

(a) Was the Rivne Regional Court of Appeal in the composition that pronounced the decision of 26 December 2014 in the applicant’s case “an independent and impartial tribunal established by law”, in particular, regard being had to the appointment of Judge K. to sit in the case (see, among others, Posokhov v. Russia , no. 63486/00, §§ 43-44, ECHR 2003-IV and Guðmundur Andri Ástráðsson v. Iceland [GC], n o 26374/18, §§ 288-90 and 295, 1 December 2020)?

(b) Was the domestic courts’ reliance on the material obtained by the law-enforcement authority by way of allegedly unlawful covert surveillance compatible with her right to a fair hearing as guaranteed by Article 6 § 1? In this connection, was the applicant afforded adequate facilities to challenge the lawfulness of that surveillance measure, as required by Article 6 § 3 (b) of the Convention (see, among others, Mirilashvili v. Russia , no. 6293/04, §§ 161-66 and 209, 11 December 2008; and Lysyuk v. Ukraine , no. 72531/13, §§ 67-76, 14 October 2021 and the authorities cited therein; and compare with Adomaitis v. Lithuania , no. 14833/18, §§ 66-74, 18 January 2022)?

(c) Was the domestic courts’ reliance on the material deriving from the audio-recording made by I.P. compatible with her right to a fair hearing as guaranteed by Article 6 § 1? In particular, have the courts duly addressed the applicant’s allegation that that material had to be excluded from evidence as collected in breach of the law (see, among others, Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 185, 6 November 2018)?

3. Has there been an interference with the applicant’s right to respect for her private life, within the meaning of Article 8 § 1 of the Convention:

(a) in connection with the covert surveillance of her office;

(b) in connection with the organisation by the law-enforcement authority of the recording by I.P. of her conversation with the applicant?

If so, was that interference justified in terms of Article 8 § 2 (see, among others, Grba v. Croatia , no. 47074/12, §§ 85-87, 23 November 2017 and the cases cited therein; Hambardzumyan v. Armenia , no. 43478/11, §§ 64-68, 5 December 2019; Lysyuk, cited above, §§ 49-55, and the cases cited therein; and Potoczká and Adamčo v. Slovakia , no. 7286/16, §§ 74-79, 12 January 2023)?

4. Did the applicant have at her disposal an effective domestic remedy for her complaints under Article 6 § 1 concerning the length of the proceedings and under Article 8, as required by Article 13 of the Convention?