CEDH · CASELAW;COMMUNICATEDCASES;ENG — 9 janvier 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } Published on 29 January 2024   FIFTH SECTION Application no. 13511/21 Andriy Oleksandrovych KOLODYAZHNYY against Ukraine lodged on 27 February 2021 communicated on 9 January 2024 SUBJECT MATTER OF THE CASE The application concerns allegedly unlawful and unnecessary processing of banking and telecommunication data of a district court judge by the law ‑ enforcement authorities within the framework of criminal proceedings against third persons and alleged unavailability of domestic remedies for the applicant’s relevant complaints. The applicant refers to Articles 8 and 13 of the Convention. On 16 January 2019 the initial five-year term of the applicant’s appointment as a judge at the Glukhiv District Court having expired and pending the completion of the official procedure for his re-appointment for life in accordance with applicable law, the applicant retained his status and remuneration as a judge, while being suspended from processing cases. On 23   December   2019 the procedure having been completed, the applicant resumed his judicial functions. In November 2019 the national law-enforcement authorities instituted criminal proceedings concerning suspected misuse of public funds on account of numerous cases nationwide where, due to delays in the organisation of the judicial re-appointment procedure, judges awaiting re-appointment retained remuneration while not processing cases during extended time-periods. In 2020 the applicant learned by chance from a colleague that the Sumy regional police had instituted an additional set of criminal proceedings with a view to investigating a possible misuse of funds by his court’s staff in that he had continued to be paid his judicial salary between 17   January and 23   December   2019, while waiting for his re-appointment. Further to that, the applicant managed to find out, by chance, that in August 2020, within the framework of those latter proceedings, the Sumy regional police investigators had applied to the Zarichnyy District Court in Sumy seeking, under Article 159 of the Code of Criminal Procedure (“CCP”), orders compelling the applicant’s telecommunications operator and bank to provide various telecommunication and banking data pertaining to the aforementioned period on the grounds that they needed to determine whether and when the applicant had in fact been physically present in his office. Insofar as the telecommunication data was concerned, on 27 August 2020 investigative Judge K. issued an order compelling the applicant’s telecommunications operator to disclose, in particular, his IMEI number (a unique International mobile equipment identity number), time and duration of each telephone call emitted or received during the period between 17   January and 23 December 2019 from his telephone, as well as telephone numbers of his interlocutors and SMS recipients/senders and his related geolocation data. As regards banking information, on 12   October   2020 investigative Judge   Y. rejected an investigator’s request of 9 October 2020 having found it insufficiently substantiated and disproportionate. The same request having been re-lodged on 29   October   2020 and assigned to Judge K., on 2   November   2020 it was allowed in part. More specifically, Judge K. issued an order compelling the bank hosting the current account to which the applicant’s salary had been paid to disclose the dates, time, location, and types of money withdrawals through cash machines and payment terminals for the period between 17 January and 23 December 2019. The order also compelled the bank to provide videorecording and photographs, if available, of the person who had effected the cash withdrawals during the above period and to disclose the account owner’s mobile telephone number. The applicant’s appeals against the court orders of 27   August and 2   November 2020 were turned down, the appeal court having held that they were not subject to appeal. The applicant’s telecommunications operator and the bank refused to answer his requests for disclosure what information, if any, they had divulged to the investigative authorities in connection with the aforementioned compelling orders on the grounds that the applicable law estopped them from answering those requests. The relevant investigative authorities to which the applicant also turned refused to divulge any relevant information referring to the confidentiality of the investigation and to the fact that the relevant criminal proceedings did not concern the applicant personally. On 6 November 2020 the Zarichnyy District Court in Sumy dismissed, in its final decision, the applicant’s appeal against the refusal of the investigative authorities to provide information concerning the scope of his banking and communication data which had been made available to them. The applicant alleges that the processing of his telecommunications and banking data by the investigative authorities was not in accordance with the law, because the applicable legal framework did not meet the “quality of law” standard and did not comply with the “rule of law” principle. In that regard he notes, in particular, that the applicable law: (a)     did not oblige the law-enforcement authority to notify the applicant about the collection of his data and did not impose any constraints as to the duration of its storage or the purposes and manner in which it could be used and processed once obtained; (b)     did not provide any mechanism empowering the applicant to contest the lawfulness and/or necessity of the collection of his data, to access it, demand its rectification or deletion or exercise his rights under domestic law either before or after the compelling order was issued; (c)     did not prevent the law-enforcement authority from re-lodging a data access request which had already been turned down by a competent judge; and (d)     did not contain any procedural safeguards curtailing the powers vested in the law-enforcement authority by Article 159 of the CCP or a mechanism ensuring the protection of personal data pertaining to the members of the judiciary. The applicant further argues that the compelling orders of 27 August and 2   November   2020 were not necessary in a democratic society, because the data access requests filed by the investigative authorities in his case did not correspond to a pressing social need and the volume of information sought by them was grossly disproportionate to any legitimate aim they might have pursued. The applicant also argues that there are no effective domestic remedies for his complaints.     QUESTIONS TO THE PARTIES 1.     Has there been a violation of the applicant’s rights to respect for his private life and/or correspondence, contrary to Article   8 of the Convention? Regard being had to the applicant’s specific arguments, the parties are invited, in particular, to comment on the quality of applicable law and its compliance with the rule of law principle and on the necessity of the alleged interference complained of. 2.     Did the applicant have at his disposal an effective domestic remedy for his complaints under Article   8, as required by Article   13 of the Convention?   In the affirmative, the Government are requested to provide examples of relevant case-law or other pertinent material.