Published on 12 February 2024

FIFTH SECTION

Application no. 11555/20 Borys Yevgenovych ZAKHAROV against Ukraine lodged on 21 February 2020 communicated on 22 January 2024

SUBJECT MATTER OF THE CASE

The application concerns, essentially, alleged structural deficiencies in the national regulatory framework resulting in overbroad discretion of the executive as to interception of private telecommunications and processing of the information obtained in connection with the interception.

Invoking, in particular, Articles 8 and 13 of the Convention, the applicant argues, firstly, that the relevant legislation, that is, the Code of Criminal Procedure, the Operational-Search Activity Act, and the Counter-Intelligence Act institute a system of interception under which any person using telephone services in Ukraine can have his/her telecommunications intercepted, without ever being notified of the surveillance. To that extent, the legislation in question directly affects all users of these services. He points to a number of alleged inconsistencies between the provisions in the three aforementioned legal instruments and argues that they lack clarity in defining the circumstances in which public authorities are empowered to resort to the interception. He further submits that the provisions on discontinuation of the interception do not contain sufficient guarantees against arbitrariness; that domestic law permits storage of excessive data and lacks precision as regards the circumstances in which the intercept material should be destroyed; that the authorisation procedures are not capable of ensuring that secret surveillance measures are ordered only when “necessary in a democratic society”; that the supervision of interceptions does not comply with the requirements of independence and does not provide effective and continuous control over legality and necessity of the measure; and that the effectiveness of any possible remedy is undermined by the absence of appropriate notification of interceptions or adequate access to documents relating to interceptions.

Secondly, the applicant argues that being actively engaged in journalistic and human-rights advocacy activities with several well-known NGOs, he has personally been a target and a victim of unjustified telephone tapping and that the domestic law does not afford him any effective avenues for redress. He notes in that respect that he is engaged, in particular, in assisting individuals fleeing authoritarian regimes and seeking refugee status in Ukraine. Starting from 2014, he has obtained various indirect indications and direct informal hints from law-enforcement officers that his telephone communications were tapped, in particular, because he was suspected of being engaged in assisting illegal immigration and communication with suspected religious extremists. However, he has not been able to obtain any official information as regards the scope, duration, or any other elements of the suspected surveillance.

In November 2019 the applicant’s lawyer filed information requests with various authorities who, according to national law, have powers to carry out covert surveillance measures. Some of them denied any surveillance and others provided allegedly evasive answers.

In February 2020 the applicant filed a criminal complaint with the State investigation bureau (“SIB”) arguing that his telecommunications had been potentially tampered with in breach of Articles 163, 182, 364 and/or 365 of the Criminal Code. On 5 March 2020 the Shevchenkivskyi District Court in Kyiv allowed the applicant’s complaint having found that the SIB had unjustifiably abstained from initiating criminal proceedings in respect of that allegation. The court’s order to open an investigation remained unenforced for more than six months, the SIB citing technical and procedural obstacles. An investigation was eventually opened by the SIB on 7 October 2020 but remained stagnant. The applicant’s request to be accorded victim status has been turned down and his other procedural requests (for example, to question particular persons as witnesses) have been either turned down or ignored.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted domestic remedies, as required by Article 35 § 1 of the Convention, in respect of the complaint concerning alleged interception of his telecommunications?

In the event of a non-exhaustion plea, the Government are requested to provide examples from the national case law in support of that plea.

2. Was the applicant subject to interception of his telecommunications, as argued by him? If so, was that interception justified within the meaning of Article 8 of the Convention?

3. If the applicant’s telecommunications have not been intercepted, can he claim to be the victim of a violation of his right to respect for his private life and/or correspondence, as protected by Article 8 of the Convention, on account of the very existence of the Ukrainian system of covert interception of telecommunications, having regard to the applicant’s allegation that such interception could be applied in respect of him at any time without him being able to find out about it and contest it?

4. If so, has there been a violation of Article 8 on account of the alleged deficiencies in the Ukrainian system of covert interception of telecommunications? In this regard, the Government are requested to explain domestic procedural safeguards against abuse which apply to interception of private telephone communications and processing of the collected data. In particular:

(i) safeguards against unauthorised interception, which serve to ensure that prior authorisation for the interception is obtained and that the decision-making process incorporates appropriate analysis of whether or not the interception is “necessary in a democratic society”, including as regards the duration of the measure;

(ii) safeguards which serve to ensure that information collected as a result of the interception is not excessive; is processed only for the purpose for which it was collected; stored only during the period justified by that purpose; and is not transferred or disclosed to unauthorised persons;

(iii) safeguards which serve to ensure existence of appropriate monitoring of the interception activity by a competent and independent authority;

(iv) safeguards which serve to ensure that an individual whose telecommunications were subject to interception has a possibility to obtain appropriate information concerning the measure and to complain to an independent body in case of abuse.

5. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 8, as required by Article 13 of the Convention?

6. In the event that the applicant’s complaint is seen as a claim that he is affected by the very existence of the impugned legislation and practice, without there being the need for him to establish that he was actually subjected to secret surveillance, and in the event that the Court may be called upon to examine the impugned legislation and practice as of the moment of the exchange of written observations in the present case, does Ukraine’s derogation under Article 15 of the Convention (initially made on 28 February 2022 and subsequently extended) apply in respect of the Article 8 rights at issue? If so, are the powers of surveillance of private telephone communications granted to the executive by the applicable legislation, which are the object of the applicant’s complaint, justified and limited to what is strictly required by the exigencies of the current situation?