Increased attention to ECHR case law indicates overall development of the state - President of the Supreme Court

Against the backdrop of Russia's full-scale war against Ukraine, the issue of compliance with conventional standards is gaining even more importance. Knowing and understanding the case law of the European Court of Human Rights and its implementation in national law enforcement cover the entire spectrum of state development in general - legislation, judicial practice, and building public life in accordance with European standards.

This was emphasised by Stanislav Kravchenko, President of the Supreme Court, during a roundtable discussion of the current ECHR case law in cases against Ukraine and other Council of Europe member states for judges of appellate and local courts of Zhytomyr, Sumy and Chernihiv regions. The event is part of a series of roundtables dedicated to discussing the application of the standards of Articles 2, 3, 5 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms at the regional level. The previous roundtable was held in April with the participation of judges from Odesa and Vinnytsia regions.

According to annual statistics, the bulk of human rights violations under the Convention are violations of Articles 3, 5 and 6 of the Convention, while violations under Article 13 of the Convention generally relate to complaints of substantive violations and are found by the ECHR in conjunction with the above articles.

‘For the most part, such violations of the Convention are related to the existence of long-term systemic problems in Ukraine. It is important that the successful overcoming of such problems requires consolidated actions of all state authorities,' said the SC President.

Regarding the violations of Ukraine's obligations under Article 3 of the Convention (prohibition of torture) established by the ECHR, Stanislav Kravchenko noted that the courts cannot ignore complaints about cruel or degrading treatment of detainees, suspects, accused persons, and convicted persons by law enforcement officers. ‘Every statement of a person about the use of unauthorised investigative methods and illegal or improper detention should be investigated as a criminal offence that requires not a formal but a proper investigation,’ Stanislav Kravchenko emphasised.

Statistics for 2022-2023 show that despite a 46% increase in the total number of cases of granting applications for a preventive measure in the form of detention compared to 2022, in 2023 there were 42% more cases of house arrest and 128% more cases of its extension. This, according to the SC President, demonstrates that Ukrainian courts have begun to abandon the practice of imposing a preventive measure such as detention and its extension in favour of house arrest. In addition, compared to 2022, in 2023, courts applied a measure of restraint in the form of a personal commitment 92% more often.

In light of Article 5 of the Convention (the right to liberty and security of person), the trend towards the imposition of lighter measures of restraint than detention is positive.

The President of the Supreme Court also focused on the ECHR judgments against Ukraine, which found a violation of Article 6 of the Convention (right to a fair trial). In 2023, 76% of the total number of violations of this article were complaints about the excessive length of court proceedings.

In addition, there are cases of judgments that state that Ukraine has violated Article 8 of the Convention (right to respect for private and family life). These decisions relate to the following issues:

1) failure of the courts to provide sufficient grounds to prove the existence of an urgent public need to evict the applicants and the proportionality of such eviction for the purposes of Article 8 of the Convention, in particular from state dormitories (for example, the ECHR judgments in the cases of Mukovoz v. Ukraine, Klymenko v. Ukraine);

2) excessive duration of consideration of cases concerning the return of a child to the place of permanent residence in accordance with the Convention on the Civil Aspects of International Child Abduction of 1980 and/or improper consideration by the courts of relevant allegations in this regard (Lyakh v. Ukraine, Baharov v. Ukraine);

3) issues related to ensuring the participation of the second parent in the child's life (Tereshchenko v. Ukraine, Bogdanov v. Ukraine, Dubas v. Ukraine);

4) the failure of the state to protect the applicants' right to informed consent to medical intervention (Mayboroda v. Ukraine);

5) the method of dismissal of judges of the Constitutional Court of Ukraine without a clear interpretation of the constituent elements of the concept of ‘breach of oath’ and the scope of their functional immunity (Golovin v. Ukraine, Ovcharenko and Kolos v. Ukraine).

On behalf of the Supreme Court, Stanislav Kravchenko also thanked the Council of Europe's Cooperation Programmes Department within the projects ‘Support to the functioning of justice in the war and post-war context in Ukraine’, ‘Fostering human rights in the criminal justice system in Ukraine’ and the OSCE Support Programme for Ukraine within the project ‘Assisting the Supreme Court and higher courts in implementing judicial reform and ensuring access to justice in times of war’ for their cooperation and assistance in holding a series of roundtables.

For his part, Maciej Janczak, Head of the Council of Europe Office in Ukraine, thanked the Supreme Court for its long-term cooperation and assured it of all the support it would provide to Ukrainian institutions for the stability and development of Ukraine.

Oleksandra Yanovska, Supreme Court Judge in the Criminal Cassation Court, spoke about the ECHR judgments delivered in cases against Ukraine in 2022-2024 under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention (protection of property).

First of all, the judge drew attention to the fact that when using ECHR judgments in national law enforcement, it is necessary to read the full text of the judgment and take into account that the relevant decisions cannot be automatically extrapolated to all similar cases. For example, the ECHR's conclusion in Figurka v. Ukraine that there was no violation of Article 6 of the Convention in a situation where there was no prosecution party during the court's appellate review of an administrative offence (provided that the criteria of impartiality of the court are met) cannot be extended to criminal proceedings.

In the case of Grebenyuk v. Ukraine, the applicant complained that the court of appeal had not questioned the witnesses who had testified in the court of first instance and whose testimony had been used as the basis for the acquittal. The ECHR declared the application inadmissible because, in particular, the testimony did not relate to a key element of the charges against the applicant.

As Oleksandra Yanovska explained, the ECHR always takes into account the good faith of the parties' behaviour. Thus, in the case of Klokov v. Ukraine the Court, taking into account the significant volume of the case file and the good faith behaviour of the applicant and his counsel, found a violation of paragraphs 1 and 3 of Article 6 of the Convention, namely that the person did not have sufficient time and opportunity to get acquainted with the case file.

The speaker also focused on the case of Trachuk v. Ukraine. In this case, the ECHR stated that the national courts had referred to the applicant's testimony, allegedly obtained as a result of ill-treatment, and found a violation of Article 6, paragraph 1, together with a violation of both the substantive and procedural aspects of Article 3 of the Convention. Instead, in the case of Antonyuk v. Ukraine, under almost similar circumstances, the ECHR did not find a violation of Article 6, also noting the absence of a violation of the substantive aspect of Article 3 of the Convention.

The recent case of L.T. v. Ukraine concerns the well-known problem of ensuring the right to defence of a person subject to compulsory medical measures within criminal proceedings. The person was deprived of the opportunity to personally participate in the trial and to personally file an appeal/cassation appeal. In this case, the ECHR found a set of violations of paragraphs 1 and 3 of Article 6 of the Convention, which consisted of the failure to ensure the right to participate in court proceedings in person and the ineffectiveness of the defence counsel's participation in the proceedings. As Oleksandra Yanovska noted, the court must take measures to ensure the right to defence in two cases: if there are signs of obvious ineffectiveness of the legal aid provided, or if the court becomes aware of the ineffectiveness of legal aid from other sources.

With regard to Article 1 of Protocol No. 1 to the Convention, the judge said that in recent years, ECHR judgments (such as Korotyuk v. Ukraine, Davydenko v. Ukraine) have stated the procedural aspect of the violation of this Article, namely that the right to peaceful enjoyment of property was violated and no effective investigation of these cases was carried out, namely criminal proceedings were not carried out or were carried out for too long, inefficiently, and as a result of this situation, the person lost the opportunity to restore his or her violated property rights and receive compensation.

Natalia Marchuk, Supreme Court Judge in the Criminal Cassation Court, highlighted the ECHR case law in the context of evidence assessment and collection.

According to her, a significant part of the judgments rendered against Ukraine in 2023-2024 relates to a global issue - violation of reasonable time limits.

The issue of Article 3 of the Convention regarding the lack of effective investigation of allegations of ill-treatment also remains relevant. ‘If such a question arises in court and it becomes known that the evidence was collected under conditions of ill-treatment, the entire evidence base is declared inadmissible in view of the existence of such a fact. The court needs to assess in detail whether there was any investigation into the fact of ill-treatment at all and how effective it was,’ the judge said.

Natalia Marchuk also focused on issues related to interference with privacy through the prism of Article 8 of the Convention. Among other things, the speaker explained that the position of the Supreme Court in this area is that when it comes to inspecting the scene of an incident - an office space - prior permission from the investigating judge is not always required, because, by definition, an office space is not a possession within the meaning of the Convention.

In addition, to prevent appeals against decisions of national courts to the ECHR, courts in criminal proceedings should pay attention to whether there was a provocation in the actions of law enforcement agencies.