Published on 26 April 2021
FIFTH SECTION
Application no. 32671/20
Georgiy Volodymyrovych LOGVYNSKYY against Ukraine
and 2 other applications
(see list appended)
communicated on 8 April 2021
SUBJECT MATTER OF THE CASE
The applications concern alleged multiple breaches of the applicants’ Convention rights in the criminal investigation and proceedings instituted by the National Anti-Corruption Bureau of Ukraine (hereinafter: “NABU”). Since June 2017 the NABU has been conducting an investigation in connection with a suspicion that the applicants had participated in a criminal scheme to appropriate for their personal benefit certain public funds.
The applicants submit that the alleged breaches of their rights occurred in the period between 2017 and 2020. However, the scale and nature of the NABU’s actions had been disclosed on 23 January 2020, following the publication of a NABU report concerning the criminal case at issue, and in the subsequent criminal proceedings in the context of decisions on the preventive measures against some of the applicants.
In the case no. 32671/20, the applicant, Mr Logvynskyy, who is a lawyer and former Member of the Ukrainian Parliament, as well as husband of Judge Ganna Yudkivska, elected to the Court in respect of Ukraine, complains, in particular, of the following:
(1) Under Article 8 of the Convention that there was no factual or legal basis (no reasonable suspicion) for the taking of the investigative measures against him, including, in particular, the tapping of his conversations, searches of lawyers’ premises where different materials were stored, and interference with his electronic communications.
He also argues that the taking of these measures was contrary to the relevant law relating to the special conditions that need to be met in order to take such measures against him as a lawyer, Member of Parliament and spouse of a sitting judge in the Court. In addition, the applicant alleges that the NABU forced another lawyer, Ms Volodymyrska (the first applicant in the case no. 25382/20; see below), to secretly record her conversations with him, which was contrary to the relevant domestic law relating to the confidentiality of lawyer-client communications.
Alternatively, the applicant argues that the above-noted investigative measures did not pursue a legitimate aim as they were not aimed at establishing the actual circumstances of the case but sought to harass him and diminish his reputation, while at the same time portraying a positive public image of the NABU as an effective institution to suppress corruption.
The applicant also contends that, even assuming that the impugned investigative measures were lawful and pursued a legitimate aim, they were not proportionate. In this connection, he stresses that there was no ex post facto judicial oversight of the taking of these measures. Moreover, there was a disproportion between the gravity of the alleged offences, including the factual basis to support them, and the nature of the impugned investigative measures;
(2) Under Article 8 of the Convention, that there was a State‑orchestrated media campaign against him, amounting to a serious and unjustified attack on his private life and his reputation;
(3) Under Article 6 § 2 of the Convention, that the orchestrated media campaign, including the statements of State officials, breached his right to the presumption of innocence; and
(4) Under Article 18 of the Convention, that the taking of the above‑noted investigative measures had an ulterior purpose of punishing actions related to the protection of human rights, including the right of individual application before the Court, as well as creating a chilling effect for lawyers providing legal assistance to persons whose rights were breached by the State. Moreover, the investigation was aimed at damaging the reputation of the applicant and his spouse, Judge Yudkivska.
In the case no. 25382/20, the first and third applicants, Ms Volodymyrska and Ms Shevkoplyas, are lawyers. The second applicant, Ms Trubchaninova, is an accountant, and the fourth and fifth applicants, Ms Kozakova and Mr Kozakov, are shareholders of a commercial group that consists of several companies.
The applicants raise, in particular, the following specific complaints.
(1) Under Article 8 of the Convention, that there was no factual or legal basis (no reasonable suspicion) for the taking of the investigative measures against them, including, in particular, the obtaining of information on the applicants and their communications, the tapping of their conversations, searches of lawyers’ premises, and interference with their electronic communications.
The first and third applicants, Ms Volodymyrska and Ms Shevkoplyas, argue, in particular, that the obtaining of information on their communications and the tapping of their conversations was contrary to the relevant law relating to the special conditions that need to be met in order to take such measures against them as lawyers. Moreover, some of the conversations were tapped by using subterfuge, namely by instructing a third party to record the conversations, which was also contrary to the law.
In addition, Ms Volodymyrska contends that the authorities’ search for, and access to, her personal files in the Bar Association was unlawful. She also complains that the application of a preventive measure by the criminal court limiting her right to communication with others is unlawful and unjustified.
As regards the legitimate aim and proportionality of the impugned investigative measures, the applicants make the same arguments as Mr Logvynskyy in his application (see above; point (1));
(2) Under Article 8 of the Convention, that – in the context of the authorities’ activities against Mr Logvynskyy and Judge Yudkivska – there was a State-orchestrated media campaign targeting also the applicants, amounting to a serious and unjustified attack on their private life and their reputation;
(3) Under Article 6 § 2 of the Convention, that the orchestrated media campaign, including the statements of State officials, breached their right to the presumption of innocence;
(4) Under Article 1 of Protocol No. 1, that the application of a preventive measure of seizure of their property during the criminal proceedings was unlawful and unjustified;
(5) Under Article 5 § 3 of the Convention and Article 1 of Protocol No. 1, the first applicant, Ms Volodymyrska, complains that the application of a preventive measure conditioning her right to liberty by a financial bail is not based on a reasonable suspicion that a criminal offence has been committed, and that the amount of bail (more than EUR 23,000) is exorbitant. She alleges that she had to seek help from a religious community to collect money for this bail, without which she would have been detained;
(6) Under Article 18 of the Convention, that the investigative and coercive measures against them form part of the authorities’ persecution of Mr Logvynskyy and Judge Yudkivska (see above; Mr Logvynskyy’s complaint under point (4)).
In the case no. 41027/20, the applicant, Ms Bernatska, who was at the relevant time the Deputy Minister of Justice of Ukraine and the Deputy Agent of the Government of Ukraine before the Court, complains, in particular, of the following:
(1) That the application of a preventive measure conditioning her right to liberty by a financial bail is not based on a reasonable suspicion that a criminal offence has been committed, that it is not justified and that the amount of bail (more than EUR 200,000) is exorbitant. In this connection, she alleges that she is indebted as she had to take a loan to collect money for this bail. She also alleges that she did not have the adequate procedural safeguards to challenge the decisions of the investigating judge ordering the impugned preventive measure. The applicant invokes Article 5 of the Convention. These complaints also fall under Article 1 of Protocol No. 1 (see above Ms Volodymyrska’s complaint under point (5));(2) Invoking Article 18 of the Convention, that the impugned coercive measure against her and her criminal prosecution form part of the NABU’s political persecution of Mr Logvynskyy.
QUESTIONS TO THE PARTIES
Common questions
1. Did the applicants have at their disposal effective remedies for their specific complaints and, if so, did they properly exhaust those remedies, as required by Article 35 § 1 of the Convention?
2. Have the applicants complied with the six-month time-limit laid down in Article 35 § 1 of the Convention as regards the specific matters complained of?
Application no. 32671/20
1. Has there been an interference with the applicant’s right to respect for his private life and/or correspondence, within the meaning of Article 8 § 1 of the Convention, as regards the taking of the investigative measures against him, including, in particular, the tapping of his conversations, searches of lawyers’ premises where different materials were stored, surveillance of his electronic communications, and/or the exertion of pressure on the lawyer Ms Volodymyrska to secretly record her conversations with the applicant?
If so, was that interference in accordance with the law in terms of Article 8 § 2?
In particular, did the domestic authorities comply with the relevant law relating to the special conditions that need to be met in order to take such measures against the applicant given his status as a lawyer, Member of Parliament and spouse of a sitting judge in the Court, and did they comply with the relevant law relating to the confidentiality of lawyer-client communications?
Did the domestic authorities’ actions pursue a legitimate aim as required by Article 8 § 2?
Were the domestic authorities’ actions necessary, within the meaning of Article 8 § 2, having regard to the gravity of the alleged offences, including the factual basis to support them, and the nature of the impugned investigative measures? In this connection, have appropriate procedural safeguards been put in place for the application of the investigative measures in question?
2. Has there been a breach of the applicant’s right to respect for his private life in relation to the allegations of a State-orchestrated media campaign against him, contrary to Article 8 of the Convention?
3. Did Article 6 § 2 apply to the circumstances of the case? If so, was the presumption of innocence respected in the present case as regards the alleged orchestrated media campaign, including the statements of State officials?
4. Was the taking of the above-noted investigative measures, purportedly pursuant to Article 8 of the Convention, applied for a purpose other than those envisaged by that provision, contrary to Article 18 of the Convention, as alleged by the applicant?
In the circumstances of the present case, does Article 18 apply in conjunction with Article 6 § 2 of the Convention (see Ilgar Mammadov v. Azerbaijan (infringement proceedings) [GC], no. 15172/13, § 261, 29 May 2019)? If so, has there been a breach of Article 18 of the Convention in conjunction with Article 6 § 2 of the Convention as regards the alleged orchestrated media campaign, including the statements of State officials, concerning the applicant’s case?
Application no. 25382/20
1. Has there been an interference with the applicants’ right to respect for their private life and/or correspondence, within the meaning of Article 8 § 1 of the Convention, as regards the taking of the investigative measures against them, including, in particular, the obtaining of information on the applicants and their communications, the tapping of their conversations, searches of lawyers’ premises, and surveillance of their electronic communications?
Has there been an interference with the first applicant’s (Ms Volodymyrska) right to respect for her private life and/or correspondence, within the meaning of Article 8 § 1 of the Convention as regards the application of a preventive measure by the criminal court limiting her right to communication with others?
If so, was the interference in accordance with the law in terms of Article 8 § 2?
Concerning, specifically, the first and third applicants, Ms Volodymyrska and Ms Shevkoplyas, did the domestic authorities comply with the relevant law relating to the special conditions that need to be met in order to take such investigative and/or coercive measures against them as lawyers?
Did the domestic authorities’ actions pursue a legitimate aim as required by Article 8 § 2?
Were the domestic authorities’ actions necessary having regard to the gravity of the alleged offences, including the factual basis to support them, and the nature of the impugned investigative measures? In this connection, have appropriate procedural safeguards been put in place for the application of the measures in question?
2. Has there been a breach of the applicants’ right to respect for their private life in relation to the allegations of a State-orchestrated media campaign targeting Mr Logvynskyy and Judge Yudkivska and, by extension, the applicants, contrary to Article 8 of the Convention?
3. Did Article 6 § 2 apply to the circumstances of the case? If so, was the presumption of innocence respected in the present case as regards the alleged orchestrated media campaign, including the statements of State officials?
4. Has there been a breach of the applicants’ right to peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1, as regards the seizure of their property in the criminal proceedings?
5. Did Article 5 § 3 of the Convention apply as regards the first applicant’s (Ms Volodymyrska) complaint about the application of a preventive measure conditioning her right to liberty by an allegedly exorbitant financial bail?
Has there been a breach of the first applicant’s (Ms Volodymyrska) right to liberty and security of person (if applicable) and/or peaceful enjoyment of possessions, within the meaning of Article 5 § 3 of the Convention and/or Article 1 of Protocol No. 1, as regards the application of a preventive measure conditioning her right to liberty by an allegedly exorbitant financial bail?
6. Was the taking of the above-noted investigative/coercive/preventive measures, purportedly pursuant to Articles 5 and 8 of the Convention and Article 1 of Protocol No. 1, applied for a purpose other than those envisaged by that provision, contrary to Article 18 of the Convention, as alleged by the applicants?
Application no. 41027/20
1. Did Article 5 § 3 of the Convention apply as regards the applicant’s complaint about the application of a preventive measure conditioning her right to liberty by an allegedly exorbitant financial bail?
Has there been a breach of the applicant’s right to liberty and security of person (if applicable) and/or peaceful enjoyment of possessions, within the meaning of Article 5 § 3 of the Convention and/or Article 1 of Protocol No. 1, as regards the application of a preventive measure conditioning her right to liberty by an allegedly exorbitant financial bail? Did she have the relevant procedural safeguards as regards the application of this measure, as required by the Convention?
2. Was the taking of the above-noted preventive measure, purportedly pursuant to Article 5 of the Convention and/or Article 1 of Protocol No. 1, applied for a purpose other than those envisaged by that provision, contrary to Article 18 of the Convention, as alleged by the applicant?
APPENDIX
No.
Application no.
Case name
Lodged on
Applicant
Year of Birth
Place of Residence
Nationality
Represented by
1.
32671/20
Logvynskyy v. Ukraine
22/07/2020
Georgiy Volodymyrovych LOGVYNSKYY
1978
Kyiv
Ukrainian
Olena Yevgeniyivna SAPOZHNIKOVA
2.
25382/20
Volodymyrska and Others v. Ukraine
27/06/2020
Oleksandra Mykolayivna VOLODYMYRSKA
1977
Kyiv
Ukrainian
Lyudmyla Mykolayivna TRUBCHANINOVA
1951
Kyiv
Ukrainian
Mariya Petrivna SHEVKOPLYAS
1978
Jerusalem (Israel)
Israeli, Ukrainian
Diana Anatoliyivna KOZAKOVA
1966
New Jersery (United States of America)
Ukrainian
Feliks Semenovych KOZAKOV
1962
New Jersey (United States of America)
Ukrainian
Olena Yevgeniyivna SAPOZHNIKOVA
3.
41027/20
Bernatska v. Ukraine
21/08/2020
Nataliya Ilarionivna BERNATSKA
1986
Kyiv
Ukrainian
Gennadiy Volodymyrovych TOKAREV
Full & Egal Universal Law Academy