VYKHOR proti Ukrajině

FIFTH SECTION

CASE OF VYKHOR v. UKRAINE

(Application no. 36618/14)

JUDGMENT

STRASBOURG

22 January 2026

This judgment is final but it may be subject to editorial revision.

In the case of Vykhor v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Andreas Zünd, President,
Mykola Gnatovskyy,
Vahe Grigoryan, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 36618/14) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 30 April 2014 by a Ukrainian national, Mr Pavlo Oleksandrovych Vykhor (“the applicant”), who was born in 1978 and lives in Kostyantynivka;

the decision to give notice of the complaints summarised in paragraph 1 below to the Ukrainian Government (“the Government”) represented by their Agent, Mrs M. Sokorenko, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 11 December 2025,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1. The case concerns the applicant’s complaints, under Articles 6, 8 and 13 of the Convention, that covert investigative (operative) measures (негласні слідчі (розшукові) дії) used against him were incompatible with his right to respect for his private life and correspondence, that he lacked effective remedies in respect of that complaint, and that criminal proceedings initiated against him were excessively long.

2. The applicant, a lawyer, is a defendant in criminal proceedings initiated in May 2013, which, according to the latest information from the parties, are still ongoing. He has been charged with defrauding V.O., his client, by inciting him to hand over money allegedly demanded by judicial and police authorities to ensure favourable treatment of V.O.’s criminal case.

3. On 23 May 2013 an investigating judge of the Donetsk Regional Court of Appeal, relying in particular on Articles 246-248 and 263 of the Code of Criminal Procedure, in two similarly-worded orders, gave authorisation to tap the applicant’s two mobile telephones and carry out audio and video monitoring respectively. The investigating judge stated, without providing additional details, that there were sufficient grounds to believe that, in the course of covert investigative (operative) measures, information could be obtained that could be of fundamental importance for the prevention, early detection and cessation of criminal offences. The judge also stated that the police had argued, in applying for authorisation that it would not be possible to obtain that information by any other means.

4. On 31 May 2013 a prosecutor from the Donetsk Regional Prosecutor’s Office authorised the police to organise a “controlled transaction” (that is to say, to provide V.O. with marked bills to hand over to the applicant).

5. By November 2013 the applicant had learned that key evidence in his case had been obtained by way of those covert investigative (operative) measures. In addition to that, the prosecution’s file included transcripts of the applicant’s telephone conversations and a meeting with V.O. recorded by law-enforcement authorities pursuant to authorisations given by the investigating judge of the Donetsk Regional Court of Appeal on 23 May 2013 to tap the applicant’s mobile telephones and to carry out his audio- and video‑monitoring. Copies of those authorisations were also included in the file.

6. On 28 February 2014 the Higher Specialised Civil and Criminal Court declined to consider appeals lodged by the applicant against the investigating judge’s authorisations of 23 May 2013, finding that they were not subject to appeal.

7. On numerous occasions the applicant lodged various criminal, disciplinary and civil complaints challenging the covert measures used against him. He alleged, in particular, that the authorisations of 23 May 2013 had been given unlawfully without an assessment of whether there was a reasonable suspicion that he had committed an offence, and that the disputed measures had constituted unlawful and disproportionate interference with the confidentiality of his private communications.

8. In March 2017 the applicant also lodged an application with the Kostyantynivka City District Court seeking the exclusion from his criminal file of evidence obtained by way of the disputed measures.

9. According to the parties’ latest submissions, as of January 2024 the criminal proceedings against the applicant were at the trial stage and no decision concerning his complaints relating to the covert measures in question had yet been taken.

THE COURT’S ASSESSMENT

1. the scope of the case

10. In his observations in response to those of the Government, the applicant reiterated a number of complaints he had raised under Articles 3, 5, 6 and 13 of the Convention when lodging the application.

11. The Court notes that the Vice-President of the Section, sitting in a single-judge formation, had already declared those complaints inadmissible on 3 November 2021, upon communication of part of the application to the Government. The Court notes that the decision by which complaints were declared inadmissible is final (Article 27 § 2 of the Convention and Rule 54 § 3 of the Rules of Court); the Court cannot therefore re-examine those complaints (see Korporativna Targovska Banka AD v. Bulgaria, nos. 46564/15 and 68140/16, § 115, 30 August 2022).

12. The Court further notes that new complaints mentioned in the applicant’s observations – concerning, essentially, the attachment of his property within the framework of the criminal proceedings against him and its destruction by a missile in 2022 – fall outside the initial scope of the present case and cannot therefore be taken up within its framework (see O.M. and D.S. v. Ukraine, no. 18603/12, § 65, 15 September 2022).

13. Accordingly, the scope of the case now before the Court is limited to the complaints which were communicated to the Government.

2. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

14. The applicant alleged that the covert investigative (operative) measures used against him, in particular the interception of mobile communications and visual, audio and video surveillance of him in public places, were incompatible with Article 8 of the Convention.

15. The Government argued that the applicant’s complaint under Article 8 was manifestly ill-founded, or, alternatively, inadmissible for non‑exhaustion. In this latter respect, they referred to the remedies provided by Articles 303 § 2 and 309 § 3 of the Code of Criminal Procedure (“the CCP”), which had not been used by the applicant, and to a possibility to seek exclusion of the evidence obtained as a result of the covert measures from the criminal file within the framework of the criminal trial, which remained open to the applicant, as the trial was still ongoing. Finally, the Government submitted that in any event there had been no breach of the applicant’s rights protected by Article 8.

16. The applicant contested the Government’s arguments.

17. In its judgment of Denysyuk and Others v. Ukraine (nos. 22790/19 and 3 others, §§ 131-32, 13 February 2025), the Court has recently established that the remedies under Article 303 § 2 and Article 309 § 3 of the CCP referred to by the Government were insufficiently certain in law and in practice. The Government having provided no new elements concerning these remedies in the present case, the Court finds no reason to depart from its findings in Denysyuk and Others. It therefore considers that the applicant was not obliged to resort to the remedies available under Article 303 § 2 and/or Article 309 § 3 of the CCP.

18. The Court next turns to the Government’s further argument that the applicant had to await the examination, in the course of his criminal trial, of his request for the evidence obtained through covert measures to be excluded from his criminal file. In this connection the Court observes that, even assuming that that avenue could potentially bring about the examination of the core of his Article 8 complaints (see Lysyuk v. Ukraine, no. 72531/13, § 42, 14 October 2021), the criminal case against the applicant was opened in 2013 and was still under examination by the first‑instance court as of January 2024. The Court therefore considers that any potential effectiveness of the above-mentioned remedy has been set at naught by the extreme delay in examination of the relevant complaint (compare Ratushna v. Ukraine, no. 17318/06, §§ 59 and 87-88, 2 December 2010; Kotiy v. Ukraine, no. 28718/09, §§ 69-70, 5 March 2015; and Zosymov v. Ukraine, no. 4322/06, § 61, 7 July 2016).

19. Regard being had to the impossibility for the applicant to secure a timely examination of the core of his Article 8 complaint by resorting to the remedies suggested by the Government, the Court dismisses their non‑exhaustion objection.

20. The Court further finds that the applicant’s complaint under Article 8 of the Convention is not manifestly ill-founded, nor is it inadmissible on any other grounds. It must therefore be declared admissible.

21. The Court considers that the covert investigative (operative) measures used against the applicant amounted to an interference with his rights protected by Article 8 of the Convention.

22. Reviewing the facts of the present case in the light of the general principles established in its case-law (see, in particular, Roman Zakharov v. Russia [GC], no. 47143/06, §§ 257, 286 and 300, ECHR 2015, and Denysyuk and Others, cited above, §§ 93, 118, 134 and 137) and noting that the Code of Criminal Procedure set out a number of procedural safeguards against arbitrary or indiscriminate application of surveillance measures (see Denysyuk and Others, cited above, § 95), the Court observes that in the present case, the investigating judge’s orders authorising the interception and recording of the applicant’s telephone communications and his audio and video surveillance in public places were formulated in vague terms without any details concerning the specific facts of the case, but simply stating that the information possibly obtained as a result of the requested covert investigative measures could be of essential importance for the investigation and restating the police’s argument that obtaining such information by any other means would be impossible (see paragraph 3 above). In addition, there is no indication in the text of the investigating judge’s orders of 23 May 2013 that he applied the test of “necessity in a democratic society”, or assessed whether the covert investigative measures ordered against the applicant would be proportionate to any legitimate aim pursued, having in mind that the applicant was a practising lawyer.

23. It follows that the Court is not satisfied that the procedure for authorising the covert investigative measures, as applied in the present case, effectively guaranteed that such surveillance was genuinely necessary and proportionate with respect to the applicant.

24. As for the post factum judicial review of the lawfulness and/or necessity of the covert surveillance measures, the Court considers, in view of its findings in paragraph 19 above, that there was no accessible ex post factum judicial review of the lawfulness of, and justification for the covert investigative measures available in Ukraine at the relevant time.

25. Bearing in mind the above, the Court finds that the interference with the applicant’s Article 8 right was not “in accordance with the law”, as required by Article 8 § 2 of the Convention. Having drawn that conclusion, it is not necessary for the Court to review compliance with the other requirements under that provision.

3. Alleged violation of article 13 of the convention in conjunction with article 8 of the Convention

26. Regard being had to its findings in paragraphs 19 and 25 above, the Court considers that, although the applicant’s complaint under Article 13 of the Convention concerning the lack of effective remedies in respect of his complaint under Article 8 of the Convention is closely linked to that complaint and therefore has to be declared admissible, it is not necessary to examine the merits of the complaint under Article 13 of the Convention separately (see Roman Zakharov, cited above, § 307).

4. Remaining complaint under well-established case‑law

27. The applicant also complained under Article 6 § 1 of the Convention that the length of the criminal proceedings against him (initiated in 2013 and ongoing before the first-instance court as of January 2024) had been excessive. The Court considers that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other ground. Accordingly, it must be declared admissible.

28. The Court notes that it has frequently found a breach of the above‑mentioned provision in similar cases (see, among other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II; Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII; and Merit v. Ukraine, no. 66561/01, 30 March 2004). It considers that in the present case the Government have not provided any fact or argument capable of persuading it to depart from its findings in the above cases. There has therefore been a breach of Article 6 § 1 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

29. The applicant claimed 25,000 euros (EUR) in respect of pecuniary damage. That sum, according to him, was equivalent to the price of his flat in Kostyantynivka, which had been attached by the court in the criminal proceedings against him and had subsequently been damaged beyond repair by a missile in 2022. The applicant further claimed EUR 10,000,000 in respect of non-pecuniary damage and EUR 50,000 in respect of costs and expenses allegedly incurred in domestic and Convention proceedings (including photocopying, postal and travel expenses). He did not provide documents justifying the amount of his claim in respect of costs and expenses.

30. The Government argued that the applicant’s claims were exorbitant and unsubstantiated.

31. The Court does not discern a causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. Ruling on an equitable basis, it awards the applicant EUR 4,800 in respect of non‑pecuniary damage, plus any tax chargeable on that amount. The Court also rejects the claim for costs and expenses.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares admissible the complaints under Article 6 § 1 of the Convention concerning the length of the criminal proceedings against the applicant, under Article 8 of the Convention, and under Article 13 of the Convention concerning the lack of effective remedies in respect of the applicant’s complaint under Article 8 of the Convention;
2. Holds that there has been a violation of Article 8 of the Convention;
3. Holds that there has been a violation of Article 6 § 1 of the Convention;
4. Holds that there is no need to examine the merits of the complaint under Article 13 of the Convention separately;
5. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 4,800 (four thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, 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. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 22 January 2026, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller Andreas Zünd
Deputy Registrar President