The applicant complained about the failure to disclose to the defence the court decisions authorising covert surveillance measures against him and admission in evidence against him of the statements of attesting witnesses absent from the trial. He invoked Article 6 §§ 1 and 3 (b) and (d) of the Convention.
CASE OF YEVDOKIMOV v. UKRAINE
(Application no. 24635/14)
22 April 2021
This judgment is final but it may be subject to editorial revision.
In the case of Yevdokimov v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Mārtiņš Mits, President,
Ivana Jelić, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 24635/14) 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 ValeriyAnatoliyovychYevdokimov (“the applicant”), on 20 March 2014;
the decision to give notice to the Ukrainian Government (“the Government”) of the part of the application set out in paragraph 1 below and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 25 March 2021,
Delivers the following judgment, which was adopted on that date:
1. The applicant complained about the failure to disclose to the defence the court decisions authorising covert surveillance measures against him and admission in evidence against him of the statements of attesting witnesses absent from the trial. He invoked Article 6 §§ 1 and 3 (b) and (d) of the Convention.
2. The applicant was born in 1984. The applicant was represented by Mr I.M. Kramar, a lawyer practising in Kharkiv.
3. The Government were represented by their Agent, Mr I. Lishchyna.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. In October 2010 the Security Service of Ukraine (SBU) started conducting operative search activities (covert investigation) concerning the applicant, at the time a police investigator. In that context, on 26 October 2010 the president of the Kharkiv Regional Court of Appeal (the Court of Appeal) authorised the wiretapping of the applicant’s mobile phone number. This information can be gleaned from various documents in the file, the text of that decision was never disclosed to the applicant. It appears that the decision in question was the only one authorising surveillance measures in respect of the applicant.
6. The covert investigation measures concerned the allegations of bribery made against the applicant by Ms N.R. The relevant events, as set out in the trial court’s judgment (see paragraph 17 below) unfolded as follows.
7. N.R.’s sons were suspected of theft. The applicant suggested to them and to her that he would be willing not to pursue a criminal investigation against them in exchange of a bribe. N.R., beginning in October 2010, paid several installments of the bribe to the applicant through his acquaintance L. but then, faced with financial difficulties, complained about the applicant’s actions to the SBU. The latter initiated a covert operation in that connection. The applicant’s conversations with N.R. were recorded.
8. On 19 January 2011 N.R. lodged a formal complaint with the SBU. On the same day an SBU investigator instituted criminal proceedings and started a formal pre-trial investigation on suspicion of bribery.
9. On the same day the SBU investigator marked some banknotes, in the presence of attesting witnesses G. and K. (who were absent from the subsequent trial – see paragraph 17 (c) below), with a marking substance visible only under ultraviolet light, and gave them to N.R. The next day, on 20 January 2011, in the presence of two other attesting witnesses (who later testified at the trial), the SBU discovered the marked banknotes in a toilet located on the floor of the police station where the applicant worked. The banknotes were discovered in a bag where a member of the police station’s cleaning staff kept a change of her work clothes. N.R. stated that the applicant had asked her to put the bribe money there in order to avoid direct contact with the cash. The applicant was arrested.
10. In the course of the subsequent investigation the SBU transmitted to the prosecutor’s office the recordings and transcripts of the applicant’s conversations with N.R. and L. for use in criminal proceedings against the applicant (see paragraph 17 (g) below). It indicated that recordings were conducted from 26 October to 30 December 2010 and 4 to 19 January 2010 and the material had been declassified and was no longer secret. On 8 April 2011 the material was formally added to the criminal case file in the applicant’s case (meaning that it was open for study by the defence at the end of investigation).
11. In the course of the subsequent criminal proceedings the applicant and his lawyers repeatedly requested and were granted access to the case file. They also studied the file at the end of investigation. There is no indication that on that occasion they formulated any requests or applications in respect of the recordings.
12. In the bill of indictment submitted to the Nova Vodolaga Court (the trial court) the prosecutor referred to the statements of attesting witnesses G. and K. describing the marking of banknotes and requested that they be called during the trial.
13. During the trial the applicant pleaded not guilty and argued that N.R. was slandering him in order to avoid criminal liability for her sons. As to the handovers of money in late 2010, the applicant denied having taken any part in them. As to the alleged handover of money at the police station, there was no proof that the money had been destined for the applicant or that he had ever touched it.
14. The trial court repeatedly summoned the attesting witnesses G. and K. but they failed to appear. The court ordered the police to search for them and escort them to the court hearings on at least four occasions. On 28 July 2011 the police reported that the witnesses could not be found at their addresses in Kharkiv. On 27 October 2011 the police reported that the witnesses in question had been conscripted servicemen who had been demobilised in April 2011.
15. On 19 April 2012 the applicant asked the trial court to request from the Court of Appeal the decision of the court’s president of 26 October 2010 authorising the wiretapping of the applicant’s phone (снятиеинформации с каналовсвязи) as well as any other decisions authorising recording of his in-person conversations (применениеиныхтехническихсредствполученияинформации).
The applicant referred to the information in the SBU letters to the prosecutor’s office (see paragraph 10 above), and stressed that, according to the letters, the relevant material was no longer secret. The court president appeared to have only authorised the wiretapping of the applicant’s phone. The applicant argued that under the relevant provisions of the Operative‑Search Activities Act and resolution of the Supreme Court concerning the procedure to be used in authorizing covert measures (see paragraphs 24 and 26 below) wiretapping of channels of communication and surveillance through other technical measures (outside of the telecommunication channels) were two distinct surveillance measures and each required a separate court authorisation. The letters from the SBU suggested that there was only one such authorisation and it had concerned the wiretapping of the telephone and did not cover any other measures.
The applicant argued that all this indicated that the recordings had likely been conducted illegally and had to be declared inadmissible as evidence.
16. On the same day the trial court rejected the applicant’s application for disclosure. It stated that there was no need to request the material in question since the court had no doubt that the investigation authorities had performed their duties in the course of the pre-trial investigation correctly and lawfully (нетсомнений в правильности и законностиисполнениясвоихслужебныхобязанностейорганомдосудебногоследствияприрасследованиинастоящегоуголовногодела).
17. On 22 May 2012 the trial court convicted the applicant of bribery committed under the circumstances set out in paragraphs 7 and 9 above and sentenced him to six years’ imprisonment. The court relied on the following evidence:
(a) in-court testimony of N.R., her adult daughter and sons who described the circumstances of the case as set out in paragraphs 7 to 9 above;
(b) in-court testimony of attesting witnesses who observed, on 20 January 2011, the applicant’s personal search, the search of his office and of the toilet where the marked banknotes had been discovered (see paragraph 9 above);
(c) pre-trial statements of attesting witnesses G. and K. who, on 19 January 2011, had observed the marking of the banknotes to be used in the bribe and the recording of that process in the investigator’s report;
(d) testimony of two members of the police station’s cleaning staff who had kept a change of their work clothes in the bag (kept in turn in the toilet) where the marked money had been found. They denied putting money in the bag or having any knowledge of it;
(e) testimony of the applicant’s acquaintances L., who on two occasions in late 2010 had received money from N.R. and transmitted it to the applicant, and A. who had been present at one such handover. The witnesses claimed to know nothing about the nature of the transactions;
(f) the investigator’s reports recording the marking of the banknotes and their discovery at the police station in the presence of attesting witnesses and a forensic expert’s report confirming the presence of the fluorescent liquid on the seized banknotes;
(g) audio and/or video recordings of telephone and in-person conversations between N.R., the applicant and his acquaintance L. in November and December 2010 and on 19 January 2011 which were played in the course of the trial and in which the applicant did not recognise his voice but N.R. identified him as the person speaking to her. According to the summary made by the trial court, the recordings contained conversations concerning non-prosecution of N.R.’s sons and transfers of money from her to the applicant;
(h) a forensic expert’s report identifying the voice on the recordings as belonging to the applicant.
18. In his appeal the applicant pointed out a number of inconsistencies in N.R.’s statements, in particular concerning the date and time when she had contacted the SBU. According to the version stated in the trial court’s judgment, she had first formally complained to the SBU on 19 January 2011. This, however, left open the question of who and how had produced the recordings of conversations in November and December 2010. Moreover, there was a disagreement between the exact time of N.R.’s initial complaint on 19 January 2011, she stating that it was around 10 a.m. while SBU records and reports (signed by attesting witnesses G. and K.) indicated the time as around 8 a.m. Examination of attesting witnesses in court had been needed to clarify that discrepancy, which, for the applicant, indicated possible falsification of evidence against him.
The applicant also complained that the Court of Appeal president’s decision authorising covert surveillance was not in the file and the trial court had unjustifiably refused to request it. This had prevented the applicant from challenging the admissibility of the relevant recordings. The applicant asked the Court of Appeal panel examining his appeal to request that the text of the Court of Appeal president’s decisions concerning covert surveillance of the applicant be submitted to it.
19. On 12 November 2012 the Court of Appeal upheld the applicant’s conviction. It stated in particular that the trial court had been correct in its assessment of the evidence, in particular witness evidence, and admission in evidence and assessment of the covert surveillance material.
20. The applicant repeated the same arguments and the same request in his subsequent appeal on points of law. In preparation of his appeal on points of law the applicant requested the relevant authorising decisions from the SBU and the Court of Appeal.
21. On 7 December 2012 the SBU informed him that an authorisation had been issued but any other information could not be provided since it was confidential.
22. On 13 December 2012 the acting president of the Court of Appeal informed the applicant that the Court of Appeal had indeed issued “an authorisation for the temporary limitation of human rights and freedoms” in respect of the applicant and that the data obtained during the above‑mentioned measures had become admissible evidence in the applicant’s criminal case which had been duly assessed by the trial court when delivering its judgment. Information on any other technical measures implemented could be obtained from the SBU.
23. On 29 October 2013 the High Specialised Court for Civil and Criminal Matters upheld the lower courts’ decisions, giving essentially the same reasons as the Court of Appeal.
RELEVANT LEGAL FRAMEWORK
24. Section 8 § 1 (9) of the 1992 Operational-Search Activities Actprovides that units conducting such activities have the right to “wiretap channels of communication, use other technical means to obtain information” (зніматиінформацію з каналівзв’язку, застосовуватиіншітехнічнізасобиотриманняінформації).
25. Section 8 § 2 of the Act provides that “covert entry into a home or other premises, wiretapping of channels of communication, surveillance of telephone conversations, of telegraph and other correspondence and use of other technical means to obtain information” can only be conducted if authorised by a court.
26. On 28 March 2008 the Supreme Court adopted its resolution no. 2 providing guidance to the lower courts concerning the procedure for issuing authorisations for covert surveillance and investigation measures. Section 3 was dedicated to explaining different types of surveillance measures that could be authorised. It distinguished between the wiretapping of channels of communication and the use of other technical means to obtain information defined as “means allowing covert recording, outside of channels of communication, of conversations, acts or circumstances” (підіншимитехнічнимизасобамиотриманняінформаціїслідрозумітитакізасоби, якідаютьзмогунегласнофіксуватипозаканаламизв’язкурозмови, дії, обстановку).
27. Other relevant provisions of the domestic law can be found in Chernika v. Ukraine (no. 53791/11, §§ 29-34, 12 March 2020).
I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
28. The applicant complained of a violation of his rights under Article 6 §§ 1 and 3 (b) and (d) of the Convention, which read as follows:
“1. In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …
3. Everyone charged with a criminal offence has the following minimum rights:
(b) to have adequate time and facilities for the preparation of his defence;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
A. The parties’ submissions
29. As to the witnesses, the applicant submitted that the prosecutor had asked in the bill of indictment that the attesting witnesses G. and K. be called and the trial court had repeatedly summoned them. However, efforts to locate them were insufficient.
30. The evidence of those witnesses was important as there had been contradictions between them and the evidence of N.R. as to the time of the investigative actions they observed. For the applicant, this indicated a forgery in the investigation material (see paragraph 18 above). He considered that other evidence against him had been weak. Therefore, the evidence of the two witnesses in question had been “decisive”. There had been no sufficient safeguards in place since the applicant had no opportunity to confront the witnesses during the investigation or the trial directly or even given an opportunity to put questions to them in writing.
31. As to the disclosure of the decision authorising surveillance measures the applicant repeated the arguments he had made before the trial court (see paragraph 15 above).
32. The Government submitted that the part of the application concerning the evidence of absent witnesses was manifestly ill-founded. They argued that the domestic authorities had made considerable efforts to summon the witnesses (see paragraph 14 above). The applicant had had full opportunity to challenge their statements. The evidence of the witnesses in question had not been sole or decisive for the applicant’s conviction, which had been based on a wide range of other evidence (including audio and video evidence examined during the trial in the applicant’s presence) examined by the courts at two levels of jurisdiction.
33. As to the complaint concerning the failure to disclose to the applicant the judicial decision authorising the surveillance measures, the Government submitted that the applicant and his counsel had not been restricted in their access to the case file, they had made many requests to study the file which had been granted (see paragraph 11 above). The applicant’s request for the documents authorising surveillance measures had been denied because they had been confidential. The Court of Appeal, which had itself issued the relevant authorisations, had confirmed that fact and the trial court was satisfied that the surveillance had been ordered in a due and lawful manner.
34. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
The Court’s assessment
(a) Admission of evidence of absent witnesses
35. The Court has already had occasion to observe (see Garbuz v. Ukraine (no. 72681/10, §§ 37-39, 19 February 2019) that attesting witnesses have a particular role in Ukrainian criminal procedure in that their function is normally merely to certify information contained in official investigation reports.
36. That being said, in the present case the Court sees no reason to depart from the approach adopted in Garbuz(ibid., § 40): in the present case, like in Garbuz, the trial court relied on the statements of attesting witnesses, as separate elements of evidence, in convicting the applicant. Accordingly, the matter of their admission in evidence is to be examined in light of the principles developed in Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, §§ 119-147, ECHR 2011),and Schatschaschwili v. Germany ([GC], no. 9154/10, §§ 110-131, ECHR 2015).
37. Turning to the three questions that are relevant under those principles, the Court notes that the domestic courts made considerable efforts to summon the witnesses in question (see paragraph 14 above). Nevertheless, those efforts can be seen as open to some criticism in that, the witnesses having been military servicemen, the authorities were likely to be in possession of records of their addresses in civilian life to which they were likely to return on discharge from the armed forces. The case-file material does not show any sustained effort to use that avenue to locate them. Therefore, the Court is prepared to hold, at least arguendo, that no good reason has been shown for the witnesses’ absence from the trial.
38. While the evidence ofthewitnesses in question was notthe“sole” evidence against the applicantand there is no indication that itwas “decisive”, the Court is prepared to assume that their evidence carried significant weight so that its admission may have weakened the applicant’s defence.
39. That being said, the evidence in question played a marginal role in the case and that is relevant for the assessment of the extent of counterbalancing factors required since the weight those factors would have to carry in order for the proceedings to be fair is directly proportionate to the weight of the absent witness’s evidence (see Schatschaschwili, cited above, § 116). The applicant’s main argument, to the effect that the attesting witnesses could clarify an apparent discrepancy in the recording of the exact hour on which the banknotes to be used as the bribe had been marked (see paragraph 18 above), was not such as to have an impact on the fairness of the proceedings as a whole.
40. Extensive other evidence against the applicant, entirely independent of the evidence of the absent witnesses, combined with the opportunity, which the applicant enjoyed in the proceedings, to give his own version of the events, provided sufficient counterbalancing factors for the handicaps faced by the defence as a result of the admission of the untested evidence of those witnesses.
41. The Court concludes that admission of the evidence of the absent witnesses did not undermine the fairness of thecriminalproceedingsagainst the applicant. It is important in this context that the material the authorities failed to disclose to the applicant (see below) had no direct connection to the absent witnesses’ evidence (contrast, for example, Yakuba v. Ukraine, no. 1452/09, §§ 50-53, 12 February 2019).
42. There has, therefore, been no violation of Article 6 §§ 1 and 3 (d) on account of admission in evidence of pre-trial statements of witnesses G. and K.
(b) Failure to disclose material to the defence
43. The Court observes that the guarantees set out in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set forth in general in paragraph 1. For this reason, it finds it unnecessary to examine the applicant’s allegations in this respect separately from the standpoint of paragraph 3 (b), since they amount to a complaint that he did not receive a fair trial. The Court will therefore confine its examination to the question of whether the proceedings in their entirety were fair (see Matanović v. Croatia, no. 2742/12, § 149, 4 April 2017, with further references).
44. The relevant principles of the Court’s case-law were recently summarised in Yakuba (cited above, §§ 43-46).
45. The Court observes that the applicant wished to obtain the decision or decisions of the president of the Court of Appeal which had authorised covert surveillance measures against him. He wished to show that only the wiretapping of his phone had been authorised and not the recordings of his in-person conversations and that, therefore, the latter were inadmissible as illegally obtained evidence (see paragraphs 15 and 18 above). While there is no absolute certainty as to whether there was one or more decisions, it appears that there was only one (see paragraph 5 above). The Court will, therefore, refer to the “decision”.
46. In this context the Court reiterates that the material the disclosure of which may be required to ensure the fairness of proceedings covers not only evidence directly relevant to the facts of the case, but also other evidence that might relate to the admissibility, reliability and completeness of the former (see Matanović, cited above, § 161, with further references). The material the disclosure of which the applicant sought fell into the latter category.
47. Under the Court’s case-law, the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation, which must be weighed against the rights of the accused (see Rowe and Davis v. the United Kingdom [GC], no. 28901/95, § 61, ECHR 2000‑II).
48. Where, as in the present case, evidence has been withheld from the defence on public interest grounds, it is not the role of the Court to decide whether or not such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them. Instead, the Court’s task is to ascertain whether the decision-making procedure complied, as far as possible, with the requirements of adversarial proceedings and equality of arms and incorporated adequate safeguards to protect the interests of the accused (ibid., § 62).
49. In examining the relevant decision-making procedure the Court observes that the domestic authorities never cited any public interest grounds for non-disclosure of the text of the relevant decision to the defence (compare Mirilashvili v. Russia, no. 6293/04, § 206, 11 December 2008). While the question was examined by the trial court, it merely stated that “the investigation authorities had correctly and legally performed their duties in the course of the pre-trial investigation” (see paragraph 16 above).
50. There is no indication that in making that determination the trial court actually had access to the text of the relevant court decision. Moreover, the trial court’s reasoning referred only to the legality in the performance of the pre-trial investigation which started on 19 January 2012 (see paragraph 8 above), while most covert recordings had already been made before the initiation of the formal investigation (see paragraph 10 above).
51. There is also no indication that the Court of Appeal’s or the Supreme Court’s panels that examined the applicant’s appeals had access to the relevant authorisation decision. Neither did they attempt to supplement the succinct reasoning of the trial court, leaving the matter entirely without comment. While the matter of disclosure was eventually examined by the acting president of the Court of Appeal (see paragraph 22 above), that official was not involved in the examination of the applicant’s criminal case and also did not cite any reasons as to why it was necessary to restrict access to the relevant material.
52. In other words, nothing in the file indicates that any judicial formation which examined the applicant’s case had access to the material which was not disclosed to the defence (compare Rowe and Davis, cited above, §§ 65-67, where the absence of scrutiny of the withheld material by the trial judge led the Court to find a violation of Article 6 § 1 of the Convention even though the material had been scrutinised by the appellate court). Moreover, the applicant was not informed of the reasons why it had been necessary to restrict his rights (compare Leas v. Estonia, no. 59577/08, § 88, 6 March 2012).
53. The Court is aware that the material in question did not contain any evidence against the applicant. It related, nevertheless, to the admissibility of a key element of evidence against him, the materials of covert surveillance (compare Miriliashvili, cited above, § 200). In that context the Court must stress that in matters of access by the defence to case-file material importance is attached to appearances as well as to the increased sensitivity to the fair administration of justice (see Öcalan v. Turkey [GC], no. 46221/99, § 140, ECHR 2005‑IV).
54. In view of these considerations, the procedure followed by the judicial authorities failed to adequately counterbalance the difficulties caused to the defence by its restricted access to the material in question.
55. It follows that there has been a violation of Article 6 § 1 of the Conventionon account ofthenon-disclosure ofthe judicial decision authorising the surveillance measures in respect of the applicant.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
56. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
57. The applicant claimed 10,000 euros (EUR) in respect of non‑pecuniary damage and 58,000 Ukrainian hryvnias (about EUR 1,740) in respect of costs and expenses.
58. The Government contested those claims considering them unjustified.
59. The Court notes that in the present case it has found a violation of Article 6 § 1 of the Convention. It does not follow from that finding that the applicant was wrongly convicted, and it is impossible to speculate as to what might have occurred had there been no breach of the Convention.The Court observes that domestic law provides for the right to request a reopening of domestic proceedings (see Chernika v. Ukraine, no. 53791/11, § 82, 12 March 2020, with further references).
60. The Court considers, in the circumstances of the present case, that the finding of a violation constitutes in itself sufficient just satisfaction for any non‑pecuniary damage sustained by the applicant.
61. The Court awards the applicant EUR 800 in respect of costs and expenses incurred before the Court, plus any tax that may be chargeable on the applicant.
62. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been no violation of Article 6 §§ 1 and 3 (d) on account of admission in evidence of pre-trial statements of witnesses G. and K.;
3. Holdsthat there has been a violation of Article 6 § 1 of the Convention on account of the non-disclosure of the judicial decision authorising the surveillance measures in respect of the applicant;
4. Holdsthat the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;
(a) that the respondent State is to pay the applicant, within three months, EUR 800 (eight hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismissesthe remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 22 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Mārtiņš Mits
Deputy Registrar President