FIFTH SECTION
DECISION
Application no. 77559/17
Boryslav Solomonovych ROZENBLAT
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 20 March 2025 as a Committee composed of:
Andreas Zünd, President,
Kateřina Šimáčková,
Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 77559/17) 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 Boryslav Solomonovych Rozenblat (“the applicant”), on 1 November 2017, who was born in 1969 and lives in Zhytomyr, and was represented before the Court by Mr O.A. Shevchuk and Ms E.O. Lazarenko, lawyers practising in Kyiv;
the decision to give notice of the complaints set out in paragraph 1 below to the Ukrainian Government (“the Government”), represented by their Agent, Ms M. Sokorenko;
the parties’ observations.
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the applicant’s complaint, under Article 8 of the Convention that, as at the time Member of Parliament of Ukraine, he was subject to unlawful covert surveillance by the National Anti-Corruption Bureau of Ukraine (“NABU”), and that he did not have an effective remedy in that respect, as required by Article 13 of the Convention. The applicant also complained that the preventive measures applied by the Solomyanskyy District Court of Kyiv prohibiting him to leave Kyiv and Zhytomyr without a permission of the authorities had adversely affected his private life (development of professional relations), and that he had not had an effective remedy in that respect. The applicant invoked Articles 8 and 13 of the Convention.
2. The facts of the case as submitted by the parties may be summarised as follows.
3. On 27 November 2014 the applicant had taken the oath of People’s Deputy of the Verkhovna Rada of Ukraine (Parliament of Ukraine) and was an active People’s Deputy, enjoying parliamentary immunity (see paragraph 9 below), at the material time the investigative covert surveillance measures were taken.
4. In July 2016 NABU received reports that an organised criminal enterprise was partaking in illegal mining, sale, and exportation of amber in Ukraine. NABU initiated operation “Rozrobka” with the aim of controlling acts of corruption pertaining to illegal amber mining. The operation identified the existence of an organised group involving unidentified senior state officials. NABU appointed special agent, S.K. as the investigating detective and authorised undercover imitation tactics to reveal criminal activity. Throughout the investigation, S.K. presented herself to the applicant and others as a representative of a foreign company that held unlawful interests in the amber trade in Ukraine.
5. In November 2016, the applicant and another individual, established contact with S.K. with a view to allegedly take part in the unlawful activities relating to amber mining.
6. In this connection, the Deputy Prosecutor General of Ukraine – Head of the Specialised Anti-Corruption Prosecutor’s Office (“SAPO”) adopted a resolution authorising the controlled commission of an act of corruption, including the use of secret recording of S.K.’s meetings with those suspected of taking part in the illegal activity.
7. On 24 November 2016, the arranged meeting was held in a restaurant, during which S.K. secretly documented the conversation between her and the applicant using video and audio recording. The applicant expressed his intention to receive the funds from S.K., which were handed to his security guard on his instructions. The next day, NABU submitted a report to SAPO that evidence of a criminal offence had been established, as a result of which SAPO registered criminal proceedings regarding the matter.
8. In the further period until June 2017 there were more than 30 instances of covert surveillance involving the applicant, although nominally targeting the object (money), public places where meetings were held, and third parties (the applicant’s security officers and lawyer). The covert surveillance consisted of video and audio recordings of various meetings, including those for exchange of money with S.K. in favour of the applicant, as well as wiretapping of the mentioned third parties’ mobile phones and video and audio surveillance.
9. On 20 June 2017 based on evidence collected in the criminal proceedings, the General Prosecutor’s Office of Ukraine requested the Verkhovna Rada to lift the applicant’s parliamentary immunity for the purpose of bringing him to criminal responsibility and to arrest and detain him. The parliamentary immunity was based on Article 27 of the relevant Law of Ukraine “On the Status of the People’s Deputy of Ukraine” and Article 482 of the Code of Criminal Procedure of Ukraine. According to this latter provision, search, arrest of a People’s Deputy of Ukraine or inspection of his or her personal belongings and luggage, transport, residential or office premises, as well as violation of the secrecy of correspondence, telephone conversations, telegraph and other correspondence and other measures, including covert investigative actions in accordance with law that restrict the rights and freedoms of the People’s Deputy of Ukraine, were allowed only if the Verkhovna Rada of Ukraine has given its consent to bring him or her to criminal responsibility, if it is impossible to obtain information in other ways.
10. On 7 July 2017, in the context of the parliamentary procedure, the applicant became aware for the first time of the covert surveillance measures surrounding his activities and interactions with S.K. and his close associates. On 11 July 2017, following an open parliamentary debate, the Verkhovna Rada lifted the applicant’s parliamentary immunity. The applicant did not challenge that decision.
11. On 13 July 2017 the applicant was officially notified of the charges against him.
12. Upon a request of the prosecutor, on 18 July 2017 the Solomyanskyy District Court of Kyiv (“the District Court”) ordered preventive measures concerning the applicant. He was obliged to pay financial bail bond, wear an electronic monitoring system, to appear in person in court upon the request of the investigator or prosecutor, to remain in the cities of Kyiv or Zhytomyr unless prior permission was granted by the investigator, prosecutor, or court, to inform the investigator, prosecutor or court about the change of his place of residence and place of work, to surrender his Ukrainian passport, and to refrain from communicating with specified individuals
13. The applicant challenged the imposition of the measure restricting his freedom of movement before the Kyiv City Court of Appeal but the court refused to open the appeal proceedings on the grounds that the applicant’s complaint should be examined in the preparatory stage of criminal proceedings.
14. During the proceedings, the applicant several times requested to travel to other regions of Ukraine and his requests were granted. After five months, on 14 December 2017, the District Court lifted the restriction on the applicant’s right to leave the cities of Kyiv or Zhytomyr.
15. In the meantime, the applicant challenged the lawfulness of his secret surveillance before the Kyiv District Administrative Court alleging that the collection of evidence in the criminal proceedings had been unlawful due to the breach of his parliamentary immunity and thus contrary to the Convention and the Constitution
16. On 20 September 2018 the Kyiv Administrative Court found in favour of the applicant on the grounds that the covert surveillance actions had been in breach of his parliamentary immunity and therefore unlawful. This judgment was upheld by the Sixth Administrative Court of Appeal. However, upon the prosecutor’s appeal, the Supreme Court quashed the administrative courts’ judgments and terminated the proceedings on the grounds that the challenge to lawfulness of evidence obtained in criminal proceedings could not be litigated before the administrative courts but should be raised and examined in the criminal proceedings.
17. According to the available information, the preparatory court proceedings were open on 12 November 2019 and the applicant did not object the lawfulness of evidence. The criminal proceedings are still pending.
THE court’s assessment
18. The Government contested the admissibility and merits of the applicant’s complaints. They argued, in particular, that the applicant’s complaint regarding the alleged unlawfulness of secret surveillance could only be examined in the criminal law framework during the criminal proceedings. As the applicant had only challenged the measures in the administrative courts, he had not exhausted the relevant remedy.
19. The applicant submitted that the domestic remedies in respect of his complaint against covert surveillance measures were ineffective. He argued, in particular, that the criminal courts were not obliged by law to examine the objections regarding lawfulness of evidence at the preparatory stage and, in any event, the criminal courts could not award compensation for any finding of an unlawful interference with his rights.
20. The Court reiterates that as regards the Article 8 complaints concerning secret surveillance in the context of criminal proceedings, the remedy must provide a possibility to determine whether the disputed interference was not only “lawful”, but whether it also answered “a pressing social need” and was “proportionate” to any legitimate aim pursued and must be capable of granting appropriate relief in that respect (see, amongst many others, Sigurður Einarsson and Others v. Iceland, no. 39757/15, § 123, 4 June 2019, with further references). However, in some cases, in particular where applicants have attempted to challenge the lawfulness of the covert measures in the course of the criminal trial, in conjunction with contesting the admissibility of the resulting evidence, the Court has accepted that that course of action counted towards the exhaustion of effective domestic remedies (see, in particular, Dragojević v. Croatia, no. 68955/11, §§ 35, 42, 47 and 72, 15 January 2015, and Lysyuk v. Ukraine, no. 72531/13, §§ 41-46, 14 October 2021).
21. Furthermore, in this context, the Court has already recognised, in principle, the potential effectiveness of a multi-step redress mechanism in Ukrainian cases, where in the criminal proceedings the unlawfulness of covert surveillance could be established and then compensation could be obtained in the separate compensation proceedings (see Lysyuk, cited above, §§ 40-46, with further references). While these cases had been decided domestically under the old Code of Criminal Procedure (1960) allowing for the adoption of “separate rulings”, which is no longer in place, in Lysyuk the Court also accepted that an acknowledgment of a breach of the applicant’s Article 8 rights could be made in the course of his trial by some other means, for instance, in a decision on the merits of his case (ibid., § 42). In the light of the Lysyuk findings, complaints by criminal defendants concerning breaches of their Article 8 rights in the course of the trial against them may still result in the acknowledgment of the breaches of their rights, notwithstanding the abolition of the “separate rulings” mechanism. It is important to point out, however, that the applicant’s Article 8 complaint in Lysyuk was limited to an allegation that the disputed interference had been unlawful in domestic terms (ibid., §§ 25 and 34). There was no question in that case that the decision on that matter fell within the competence of the criminal courts, as they had to decide on the admissibility of evidence collected as a result of the disputed interference (ibid., § 46, and see also Denysyuk and Others v. Ukraine, no. 22790/19 and 3 others, § 124, 13 February 2025, not yet final).
22. These considerations pertain in the present case. The applicant’s domestic complaint regarding secret surveillance was concerned with its alleged unlawfulness (see paragraph 15 above), which the criminal courts are competent to examine and which could, if successful, lead to the award of compensation in the separate proceedings, in accordance with the multi-step redress solution in Ukrainian cases (see paragraph 21 above). In this connection it should also be noted that the Supreme Court has found that by pursuing the proceedings in administrative courts the applicant had not used the relevant legal avenue for his complaints and that he should raise the issue before the criminal courts (see paragraph 16 above).
23. However, according to the available information, the applicant did not raise this issue before the criminal courts (see paragraph 17 above), although there is nothing suggesting that he did not have access to the relevant materials and information necessary to challenge the lawfulness of the secret surveillance allegedly targeting him (contrast Denysyuk and Others, cited above, § 130). Moreover, while it is not to be excluded that protracted awaiting of the decision on the merits in the criminal proceedings could undermine the effectiveness of a multi-step redress solution in a particular case, in the present case such an issue does not arise in the absence of the applicant’s attempts to pursue his complaints in the criminal proceedings. The applicant’s main argument as regards the ineffectiveness of the criminal avenue is that he could not obtain compensation by the criminal courts, which, however, cannot be accepted in light of the Lysyuk case-law (see paragraph 21 above).
24. In these particular circumstances of the case, the applicant’s complaint under Article 8 of the Convention must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of the relevant domestic remedies. It also follows that the applicant’s complaint under Article 13 of the Convention is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
25. The Government contested the admissibility and merits of the applicant’s complaints.
26. The applicant did not challenge the lawfulness of the preventive measure noted in paragraph 1 above but argued that they had been excessive and disproportionate.
27. The Court notes that the there is no dispute between the parties that the impugned preventive measure of prohibiting the applicant to leave Kyiv and Zhytomyr without a permission of the authorities amounted to an interference with his rights under Article 8 and that such an interference was lawful and pursued a legitimate aim. The applicant primarily challenges the proportionality of the interference.
28. In that respect, the Court notes that the measure in question was imposed as a preventive measure concerning allegations of a serious criminal offence undermining trust in public institutions and the activities of a People’s Deputy of the Verkhovna Rada of Ukraine. The authorities duly pursued the criminal proceedings, the measure was kept under constant review and was lifted after five months (see, by contrast, Kotiy v. Ukraine, no. 28718/09, § 74, 5 March 2015). Moreover, the applicant several times requested to travel to other regions of Ukraine and his requests were granted (see paragraph 14 above). Thus, leaving aside the question whether asking for permissions to leave Kyiv and Zhytomyr should be considered an effective remedy as such (Ibid., § 73), the fact is that the applicant was not completely restricted in his rights and he has failed to demonstrate the concrete adverse impact of the measure in question on his professional or private life.
29. It follows that the applicant’s Article 8 complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. Furthermore, Article 13 does not apply in the absence of an arguable claim (see, for instance, Maurice v. France [GC], no. 11810/03, § 106, ECHR 2005‑IX). Bearing in mind the above considerations, the Court finds that the complaint under Article 13 is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 24 April 2025.
Martina Keller Andreas Zünd
Deputy Registrar President