FIFTH SECTIONCASE OF LYSYUK v. UKRAINE(Application no. 72531/13)  JUDGMENT Art 8 • Private life • Unlawful covert recording of applicant’s conversations by police, later used as evidence in criminal proceedings against himArt 6 § 1 (criminal) • Overall fair proceedings, despite admission in evidence of conversation recording • Recording having a limited role in applicant’s convictionArt 6 § 1 (criminal) • Excessive length of proceedings STRASBOURG14 October 2021  FINAL 14/01/2022  This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Lysyuk v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Síofra O’Leary, President, Mārtiņš Mits, Ganna Yudkivska, Stéphanie Mourou-Vikström, Lətif Hüseynov, Lado Chanturia, Mattias Guyomar, judges,and Victor Soloveytchik, Section Registrar,Having regard to:the application (no. 72531/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Leonid Vasylyovych Lysyuk (“the applicant”), on 14 November 2013;the decision to give notice of the application to the Ukrainian Government (“the Government”);the parties’ observations;Having deliberated in private on 7 September 2021,Delivers the following judgment, which was adopted on that date:INTRODUCTION1. The case concerns the applicant’s complaints, under Article 6 § 1 and Article  8 of the Convention, that covert recordings of his conversations had been made unlawfully and subsequently used as evidence in criminal proceedings brought against him for bribery. He also raised other complaints concerning those criminal proceedings.THE FACTS2. The applicant was born in 1956 and lives in Radomyshl. The applicant was represented by Mr A.S. Kychenok, a lawyer practising in Kyiv.3. The Government were represented by their Agent, Mr I. Lischchyna.4. The facts of the case, as submitted by the parties, may be summarised as follows.Background TO the case5. The applicant, at the time head of the State Bailiffs Service in the Radomyshl District, was convicted of bribery in relation to two separate incidents. The applicant’s key complaints in the present case concern his conviction for the second incident although his complaint about examination of witnesses also touches on the first episode (see paragraph 57 below). The relevant events, as set out in the trial court’s judgment (see paragraph 21 below), unfolded as follows.6. In the first incident, the applicant, at the request of A.R., the managing director of the K. company, took steps to prevent the sale by auction of the company’s assets by creating documents falsely showing that the company’s debts had been paid up before the auction. In exchange for this favour, the applicant received a bribe from A.R. in May 2006.7. In the second incident, in March 2006 the applicant solicited a bribe from O.L., the managing director of the P. company, in exchange for his help in managing the collection, by various creditors, of debt owed by the P. company, through valuing and selling the company’s assets in a manner favourable to O.L. One bribe was paid in April 2006. The applicant then asked for another and in January 2007 O.L. complained to the police. The police apparently obtained an order from the President of the Zhytomyr Regional Court of Appeal (“the Court of Appeal”) authorising the wiretapping of the applicant’s office landline (see paragraph 17 below) and supplied O.L. with marked banknotes. On 24 January 2007 the police made a recording of a telephone conversation between the applicant and O.L. On 26 January 2007 the applicant visited O.L. in his home, from where he took the marked money. A video-recording of the events in O.L.’s home was made. When the applicant left O.L.’s home, the police approached him and he attempted to flee and discard the marked money, but it was discovered on the ground near him. He was arrested.Investigation and THE FIRST AND THE SECOND trial8. On 10 February 2007 the investigator drew up a report on his examination of the audio-recording made on 24 January and the audio and video-recordings made on 26 January 2007. According to the report:(i)  during the telephone conversation on 24 January 2007, the applicant and O.L. had discussed a transfer of money to the applicant for reasons that were unclear, a possible meeting and various business matters. It is not known whether that conversation was held on the landline of the State Bailiffs Service (see paragraph 17 below) or on another line; and(ii)  on 26 January 2007 the applicant, in the home of O.L., offered to ensure that O.L.’s business and assets would be protected; he subsequently received a stack of banknotes from O.L.9. On 24 April 2007 the investigation was completed and the case was sent for trial.10. The applicant stood trial before the Malyn Court, with Judge Z. sitting as the trial judge.11. The applicant pleaded not guilty and refused to testify, arguing that there was no evidence against him and in particular that the audio and video-recordings had been obtained unlawfully.12. During the trial all relevant witnesses were examined. Their testimony was audio-recorded.13. On 27 November 2007 the trial court convicted the applicant; however, on 19 February 2008 the Court of Appeal quashed that judgment and remitted the case for a retrial before a different judge.14. The retrial started before Judge M. In January 2009 the case was transferred to Judge Y., since the previous judge’s appointment had come to an end, and in November 2010 to Judge T., owing to Judge Y.’s long-term illness. Each new judge undertook a fresh examination of the evidence and witnesses. Hearings were scheduled at regular intervals. Some of the adjournments were for longer than two months; for example:(i)  at the end of the hearing held on 1 July 2009 the next hearing was scheduled for 1 October 2009; and(ii)  on 16 May 2011 the next hearing was scheduled for 18 August 2011.15. All relevant witnesses were examined again by Judge Y., after he had made a considerable effort to summon them and ensure their presence at the hearings. In particular, he had issued a separate ruling addressed to the regional police chief, pointing out that the police officers had failed in their duty to comply with court orders to bring witnesses to court.16. Granting the applicant’s application, on 28 April 2010 the trial court requested information from the Court of Appeal as to whether judicial authorisation for the interception of the applicant’s conversations in 2006 and January 2007 had been granted.17. On 5 May 2010 the Court of Appeal replied that all information concerning the wiretapping of the landline of the State Bailiffs Service unit of which the applicant had previously been the head was kept by the relevant police department which had conducted the wiretapping.18. During the re-examination of the evidence by Judge T. when he took over the case, all relevant witnesses were again re-examined, with the exception of those mentioned in the following paragraph.19. At the hearing of 21 February 2011, O.L. appeared. According to the records provided by the Government, he was examined at that hearing. However, the trial court stated in its judgment that he had refused to repeat his previous statements in court and had asked that his pre-trial statement be relied upon instead. On the same day O.L. filed a statement with the court, asking it to accept his previous testimony concerning the case and no longer summon him. According to the Government, on the same day the applicant asked the court to read out the prior statements given by the auction’s organisers, K.P. and T.M., and by the applicant’s former subordinates, I.P. (in relation to the first incident – see paragraph 22 below) and T.B. (in relation to the second incident – see paragraph 23 below).20. At the same hearing the applicant was released from detention.Conviction21. On 19 December 2011 the trial court convicted the applicant of abuse of his official position, bribery and forgery, and sentenced him to four years and twenty-four days’ imprisonment.22. In respect of the first incident, the trial court relied on A.R.’s testimony (see paragraph 6 above), and on other witness and documentary evidence, including the testimonies of the three witnesses mentioned in paragraph 19 above.23. In respect of the second incident, the trial court relied on:(i)  O.L.’s pre-trial statement describing the events (see paragraph 7 above). The trial court stated in its judgment that O.L. had appeared at the retrial but had refused to testify, saying that he had already given his statement at the pre-trial stage and that the court had read out his pre-trial statement, with the agreement of all the parties;(ii)  evidence from O.L.’s driver, who had testified that he had learned from O.L. that the applicant had been demanding a bribe and had driven O.L. to meetings with the applicant and had seen O.L. preparing cash, supposedly for the bribes;(iii)  evidence from O.L.’s neighbour, who had seen the applicant in O.L.’s home on the day of his arrest;(iv)  evidence of attesting witnesses, who had observed the marking of cash to be used in the bribe and the discovery of the cash on the ground near the spot of the applicant’s arrest, and police reports documenting the same;(v)  the results of a forensic examination, showing the identity of the marking substance on the cash, on the applicant’s jacket and on swabs from his hands;(vi)  audio and video-recordings conducted in O.L.’s home on 26 January 2007 (see paragraph 8 above);(vii)  evidence given by the applicant’s former subordinates (including T.B.) to the effect that the applicant had taken a personal interest in the enforcement proceedings against O.L. In particular, they had testified that in January 2007 the applicant had repeatedly ordered that the enforcement proceedings against O.L.’s company be discontinued since all assets had been transferred to O.L. and that he had assured them that he would personally deal with any related litigation.24. Concerning the applicant’s allegations of breaches of the law by the investigating authorities on various points, including “unlawful video and audio recordings”, the court rejected them considering that they “had not been confirmed during the trial”.Appeals25. The applicant appealed, arguing that the trial court had erred in the assessment of the evidence and the interpretation of domestic law and that by doing so it had committed a crime, as had the individuals who had testified against him. He described in detail why he considered that it had been they and not he who had broken the law. He filed lengthy submissions, without any table of contents or summary of the key points.The applicant complained on page 100 of his appeal (out of a total of 118 pages) that the audio and video-recordings of 26 January 2007 and the audio-recording of the telephone conversation of 24 January 2007 had been conducted in breach of domestic law and without court authorisation, and that the relevant evidence was therefore inadmissible. He relied on section 8(2) of the Operational-Search Activities Act (see paragraph 32 below). He pointed out that, according to the information provided by the Court of Appeal (see paragraph 17 above), an authorisation had been issued only for the wiretapping of the landline of the applicant’s unit within the State Bailiffs Service, and not for the audio and video-recordings of the conversation on 26 January 2007 in O.L.’s home. Accordingly, that latter evidence had been inadmissible.26. On 9 October 2012 the Court of Appeal modified the trial court’s judgment, discontinuing as time-barred the proceedings on all charges other than bribery, and upheld the conviction in so far as it concerned bribery in respect of both incidents. The Court of Appeal considered that the evidence was sufficient to support the conviction and that “the investigation authorities and the trial court did not commit any substantial breaches of the criminal procedure legislation which would justify quashing the conviction”.27. On 16 May 2013 the Higher Specialised Court for Civil and Criminal Matters dismissed a cassation appeal by the applicant, in which he had raised essentially the same arguments in the same extensive manner, and upheld the lower courts’ decisions, finding no indication of any illegality. Without referring specifically to the recordings, the court of cassation stated that the alleged “violations of criminal procedure legislation alleged by the applicant in his appeal are not substantial and, therefore, cannot be grounds for quashing or amending the lower courts’ decisions”.RELEVANT LEGAL FRAMEWORK AND PRACTICEConstitution of 199628. Article 55 guarantees to everyone the right to challenge in court the decisions, actions or omission of public authorities and officers and Article 56 guarantees to everyone the right to compensation for damage caused by their unlawful actions and decisions.Code of Criminal Procedure 1960 (as in force at the material time)29. Under the Code of Criminal Procedure 1960, the courts had the power to issue a separate ruling (окрема ухвала) drawing the attention of State bodies, public organisations or officials to the facts surrounding a violation of the law that had been established in a particular case and the reasons and conditions that contributed to the commission of the crime, and to request appropriate measures (Article 23-2). The courts of appeal and cassation were also empowered to issue such separate rulings (Articles 380 and 400-2).30. Other relevant provisions of the Code can be found in Berlizev v. Ukraine (no. 43571/12, §§ 21-26, 8 July 2021, not yet final).Compensation Act 199431. Section 2 of the Compensation Act 1994 (the Law on the procedure for compensation for damage caused to a citizen by the unlawful actions of bodies of inquiry, pre-trial investigative authorities, prosecutors or courts) provides for the possibility of claiming compensation for damage caused by the actions of investigating authorities in the event of an acquittal or the discontinuation of criminal proceedings on “rehabilitating” grounds. In addition, with effect from 1 January 2006, the list of cases where the right to compensation would arise was expanded by the inclusion of the following point:“(1-1) [W]here a court establishes, in a verdict or other judicial decision (except for a decision ordering fresh consideration [of a criminal case]), that there has been an unlawful charge, unlawful remand and detention in custody, [an] unlawful search [and] seizure in the course of criminal proceedings, an unlawful attachment of property, an unlawful suspension from work and other procedural actions restricting a citizen’s rights [or] unlawful conduct of operational-search activities;”Operational-Search Activities Act 199232. Section 8(2) of the Operational-Search Activities Act (as worded at the relevant time) provided that the use of technical means of obtaining information during operational-search activities had to be authorised by a court decision.33. Section 9 of the Act provides for the obligation of units conducting operational-search activities to compensate for any damage caused by their activities if the latter resulted in a breach of human rights and freedoms.THE LAWI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION34. The applicant complained of a breach of his rights on account of the recording of his conversations on 24 and 26 January 2007. He relied on Article 8 of the Convention, which reads as follows:“1. Everyone has the right to respect for his private and family life, his home and his correspondence.2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”The parties’ submissionsThe Government35. The Government submitted that the applicant had not exhausted effective domestic remedies. In particular, he had not brought proceedings against the police officers for damages under the Compensation Act. They also submitted that Articles 55 and 56 of the Constitution and section 9 of the Operational-Search Activities Act provided for the possibility of challenging the actions of investigation authorities before the domestic courts (see paragraphs 28 and 33 above). Since the applicant had not had recourse to the available remedies, the six-month period had to be counted from the act in issue, namely the drawing up of the report of 10 February 2007 (see paragraph 8 above).36. The Government further submitted that the interference with the applicant’s correspondence had been lawful, having been based notably on section 8 of the Operational-Search Activities Act. The interference had been of an exceptional and temporary nature.The applicant37. The applicant submitted that he had exhausted all available domestic remedies. Only criminal proceedings could be an effective remedy for an alleged breach of the right to privacy. The applicant had raised the issue of the unlawful recording of his conversations throughout the criminal proceedings, including in his appeals.38. On the merits, the applicant argued that there had been no legal grounds for the interference and that, accordingly, there had been a violation of Article 8 of the Convention.The Court’s assessmentAdmissibility(a)   Admissibility of the complaint concerning the recording of the telephone conversation on 24 January 200739. The Court need not examine the Government’s objections in respect of this part of the complaint as it considers that, in any event, the applicant has failed to make an arguable complaint under Article 8 of the Convention concerning the recording of his telephone conversation on 24 January 2007 because he failed to explain clearly whether that conversation was held on the landline wiretapped under the authorisation of the Court of Appeal or on a different telephone line not covered by that authorisation (see paragraphs 8 and 17 above). It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.(b)   Admissibility of the complaint concerning the recording of the conversation in O.L.’s home on 26 January 200740. In Volokhy v. Ukraine (no. 23543/02, § 59, 2 November 2006), where the relevant events occurred between 1996 and 2004, the Court found that a claim under the Compensation Act could in principle serve as an effective domestic remedy for individuals affected by surveillance measures. The Court held, however, that on the facts of that case such a claim did not function as an effective remedy for the applicants, who were not defendants in the relevant criminal proceedings. At the relevant time, the Compensation Act only provided for compensation in the event of acquittal or the discontinuation of proceedings on “rehabilitating” grounds.41. Since the judgment in Volokhy (cited above), the Compensation Act has been amended to expressly provide for the right to compensation even where, as in the present case, there was no acquittal or discontinuation of criminal proceedings but where investigative or covert (“operational-search”) police operations were found to have been unlawful in a judicial decision other than a decision remitting the case for further investigation or re-examination by a lower court (see Orlovskiy v. Ukraine, no. 12222/09, §§ 50 and 55-61, 2 April 2015, and paragraph 31 above).42. In the present case the applicant complained of the unlawfulness of the surveillance measures whose alleged illegality was an issue before the courts dealing with his criminal case; those courts, including the courts of appeal and cassation, had the power to examine the issue and adopt, separately from their decisions on the merits of the criminal case, a ruling pointing to any illegality in respect of those surveillance measures (see paragraph 29 above and Berlizev v. Ukraine, no. 43571/12, § 33, 8 July 2021). The trial court did in fact issue such a ruling concerning the summoning of witnesses to the court hearings (see paragraph 15 above). Alternatively, it was open for the national courts to establish any such unlawfulness in their decisions on the merits of the criminal case, such as the trial judgment.43. A separate ruling of this type, if it had been issued in respect of the surveillance measures in issue or a decision on the merits of the criminal case acknowledging such unlawfulness, would have constituted grounds for a claim under the Compensation Act (see Orlovskiy, cited above, §§ 14 and 58, and Tikhonov v. Ukraine, no. 17969/09, §§ 22 and 39, 10 December 2015).44. The Court has already observed in Lelyuk v. Ukraine (no. 24037/08, § 39, 17 November 2016) that obtaining a judicial declaration of the unlawfulness of an act was the first step in a two-step system of remedies under the Compensation Act, the second step being a claim for damages. While Lelyuk concerned allegations of unlawful detention, the above considerations are equally valid in respect of allegedly unlawful surveillance measures.45. It follows that by raising in his appeals in the criminal proceedings the issue of the alleged unlawful surveillance, the applicant had recourse to a domestic remedy which was in principle effective, as the first step in a two-step acknowledgment and compensation mechanism. It was not open to the applicant to undertake the second step, a compensation claim before the civil courts, as the criminal courts neither issued a separate ruling acknowledging that the surveillance measures had been unlawful nor acknowledged that in any of their decisions on the merits of the criminal case.46. The Court observes that the applicant’s complaint raised before the Court is limited to the alleged unlawfulness of the recording in terms of domestic law. It has not been questioned that it was open to the domestic courts, in the context of criminal proceedings against the applicant, to deal with this complaint and acknowledge any such unlawfulness had they established it (compare Bălteanu v. Romania, no. 142/04, § 37, 16 July 2013, and contrast Sigurður Einarsson and Others v. Iceland, no. 39757/15, § 123, 4 June 2019, with further references). Therefore the applicant exhausted the domestic remedies that were available in the circumstances in respect of that complaint. The six-month period ran from the final decision in his criminal case, given on 16 May 2013 (see paragraph 27 above).47. The Court therefore dismisses the Government’s objections in respect of non-exhaustion of domestic remedies and compliance with the six-month time-limit.48. This complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.Merits49. The relevant principles of the Court’s case-law can be found in Berlizev (cited above, §§ 38 and 39, not yet final).50. The first question arising is whether there was an interference with the applicant’s rights under Article 8 of the Convention. The recording was made in O.L.’s home by the police. It can be assumed that it was carried out with O.L.’s consent, although there is no specific information on that point in the file.51. Having regard to the fact that the recording was organised and carried out with the authorities’ involvement, in this case direct, it falls within the ambit of Article 8 of the Convention even if conducted in private premises with the consent of or at the invitation of the premises’ private owner (see Van Vondel v. the Netherlands, no. 38258/03, §§ 47‑50, 25 October 2007).52. There has accordingly been an interference by public authorities with the applicant’s private life within the meaning of Article 8 of the Convention.53. The applicant alleged that the recording of his conversations in O.L.’s home on 26 January 2007 had been conducted by the police without judicial authorisation. Although he raised this issue before the domestic courts, there is no indication in the file of any concrete response to that allegation and the Government did not dispute it in their observations. The Court, therefore, has no choice but to accept that the recording was carried out by the police without judicial authorisation.54. In Berlizev (cited above, §§ 40 to 42, not yet final) the Court found it established that conducting such recordings in the absence of a judicial authorisation was in breach of domestic law. The present case concerns the same domestic legal framework and the Court sees no reason to reach a different conclusion.55.

Outcome for Article 8: violation