Here’s a breakdown of the Kyyko v. Ukraine decision from the European Court of Human Rights:
**1. Essence of the Decision:**
The European Court of Human Rights (ECtHR) found Ukraine in violation of Articles 3, 8, and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms in the case of Mr. Sergiy Oleksandrovych Kyyko. The Court ruled that the applicant was subjected to ill-treatment by the police, which was not properly investigated, and that his telephone conversations were recorded without proper judicial authorization, leading to a lack of effective remedy. While the applicant also complained about the use of these recordings as evidence against him, the Court found no violation of Article 6, stating that the overall fairness of the criminal proceedings was not compromised.
**2. Structure and Main Provisions:**
* **Subject Matter:** The case concerned the applicant’s complaints about ill-treatment by law enforcement, the lack of an effective investigation into it, and the unlawful interception of his telephone conversations, which were then used as evidence against him.
* **Criminal Proceedings:** The applicant was convicted of theft of transformer oil based partly on recordings of his telephone conversations. He argued that the interception was unlawful due to the lack of access to the judicial authorization.
* **Alleged Ill-Treatment:** The applicant claimed he was subjected to force and ill-treatment by police officers during a transfer to a detention center, resulting in injuries.
* **Court’s Assessment – Article 3:** The Court found that the injuries documented by the SIZO doctor constituted an arguable claim of ill-treatment, triggering an obligation for the authorities to conduct an effective investigation. The Court noted deficiencies in the investigation, including the delayed forensic medical examination and the failure to examine video recordings. The Court concluded that the State failed to provide a satisfactory explanation for the applicant’s injuries, leading to a violation of Article 3 under both its procedural and substantive limbs.
* **Court’s Assessment – Article 8:** The Court acknowledged that the recording of the applicant’s telephone conversations constituted an interference with his rights under Article 8. The Court found that the national courts failed to carry out an effective judicial review of the lawfulness and necessity of the surveillance measures, leading to a violation of Article 8.
* **Court’s Assessment – Article 13:** The Court found that the applicant did not have effective remedies to challenge the lawfulness of the interception of his mobile phone conversations, leading to a violation of Article 13 taken together with Article 8.
* **Court’s Assessment – Article 6:** The Court found that the evidence collected as a result of the surveillance measure had a limited impact on the applicant’s conviction. The Court concluded that the overall fairness of the criminal proceedings against the applicant was not compromised.
* **Article 41 (Just Satisfaction):** The Court awarded the applicant EUR 4,000 for non-pecuniary damage and EUR 3,000 for costs and expenses.
**3. Main Provisions for Practical Use:**
* **Ill-treatment Investigation:** The decision reinforces the obligation of national authorities to conduct prompt, thorough, and effective investigations into allegations of ill-treatment by law enforcement, especially when injuries are documented.
* **Secret Surveillance:** The decision highlights the need for domestic courts to ensure a proper balance between the interests of the surveillance subject and the public interest when dealing with requests for the disclosure of decisions authorizing covert operations.
* **Judicial Review:** The decision emphasizes that domestic courts must conduct an effective judicial review of the lawfulness and necessity of surveillance measures, providing sufficient safeguards against arbitrariness.
* **Burden of Proof:** When events lie within the exclusive knowledge of the authorities, such as in cases of detention, the burden of proof rests on the authorities to provide a satisfactory explanation of events and refute allegations of ill-treatment.
**** This decision has implications for Ukraine, particularly regarding the conduct of investigations into allegations of ill-treatment by law enforcement and the safeguards surrounding secret surveillance measures. It underscores the importance of transparency, accountability, and effective remedies in such cases.
