Published on 10 July 2023

FIFTH SECTION

Application no. 26371/16 Sergiy Oleksandrovych KYYKO against Ukraine lodged on 19 April 2016 communicated on 20 June 2023

SUBJECT MATTER OF THE CASE

The application concerns a number of issues relating to criminal proceedings against the applicant.

By a final judgment of 5 November 2015, the applicant and his co-defendants were found guilty of several episodes of theft of lube oil, committed as a group, and attempted theft of oil on 4 May 2012. They were sentenced to 3 years and 6 months’ imprisonment but were released from serving their sentences following the application of the Amnesty Act by the Court of Appeal. The sentence was based, inter alia , on evidence obtained through police interception of the defendants’ mobile phone communications.

At the trial, in response to the applicant’s complaint that the interception of telephone communications had been unlawful and could not serve as evidence, the domestic courts found, on the basis of the police information note, that the measure had been authorised by the Court of Appeal and was therefore lawful. However, the courts noted that they had no copies of the relevant court decisions because they had been classified by the police.

While awaiting trial the applicant was detained in the Dnipropetrovsk temporary detention centre (ITT), where he alleges to have been ill-treated by the staff, on 30 November 2013. Although his injuries (a circular reddening on both wrist joints and a bruise on his right eyebrow) were recorded in the medical unit of the ITT, no investigation into his respective complaint was conducted for many years, with the investigation being repeatedly closed and reopened. In February 2019, when the applicant lodged his complaint with the Court, the investigation was still pending.

The applicant complains under Article 3 of the Convention about his ill ‑ treatment on 30 November 2013 and the lack of an effective investigation into it. He also complains under Article 8 of the Convention that the interception of his telephone communications constituted an unjustified interference with his right to respect for his private life and, in particular, that the interception was unlawful as it had not been authorised by a court. In that connection, he noted that no court decision authorising the secret surveillance measure in his case had ever been disclosed to him. Finally, the applicant complained, referring to Article 6 § 1 of the Convention, that the evidence obtained as a result of the allegedly unlawful interception of his telephone communications with co-defendants had then been used by the trial court to establish his guilt, thus rendering his conviction unfair.

QUESTIONS TO THE PARTIES

1. Has the applicant been subjected to ill-treatment on 30 November 2013, in breach of Article 3 of the Convention?

2. Having regard to the procedural protection from treatment infringing Article 3 (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

3. Did the applicant lodge his complaint under Article 8 of the Convention within the six-month time-limit established in Article 35 § 1 of the Convention?

4. Did the interception of the applicant’s telephone communications constitute interference with his right to respect for his private life and/or correspondence within the meaning of Article 8 § 1 of the Convention?

5. If so, was the interference resulting from the interception of the applicant’s telephone communications “lawful” within the meaning of Article 8 § 2 of the Convention? In particular,

(a) Was the covert measure authorised by a court decision as provided for by Article 187 of the Code of Criminal Procedure of 1960?

(b) Was any judicial order authorising the interception available to the applicant under the domestic law? If not, did the domestic legislation provide the applicant with sufficient guarantees against arbitrary interference by the public authorities with his rights secured by Article 8 § 1 of the Convention?

6. Was the interception of the applicant’s telephone communications “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention? If so, was it proportionate to the aim(s) sought to be achieved?

7. Did the applicant have effective domestic remedies for his complaint under Article 8 of the Convention, as required by Article 13? In particular, was the trial court which examined the criminal case against the applicant empowered to assess the lawfulness, aims and proportionality of the alleged interference with the applicant’s rights under Article 8 of the Convention resulting from the interception of his telephone communications, when it examined the applicant’s request for the evidence obtained as a result of that interception to be declared inadmissible? If not, were any other remedies, sufficiently established both in theory and in practice, available to the applicant at the material time in respect of his complaint under Article 8? If not, were the requirements of Article 13 taken in conjunction with Article 8 of the Convention satisfied in the present case?

8. Did the fact that the domestic courts admitted as evidence the recordings of the applicant’s telephone communications adversely affect the overall fairness of the criminal proceedings against him, regard being had to his allegations that the interception of those communications was unlawful? If so, has there been a breach of the applicant’s right to a fair trial under Article 6 § 1?