MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1501/H46-37

13 June 2024

1501st meeting, 11-13 June 2024 (DH) Human rights   H46-37 Balitskiy group v. Ukraine (Application No. 12793/03) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)372, CM/Del/Dec(2017)1294/H46-34

 

Application	Case	Judgment of	Final on	Indicator for the classification
12793/03	BALITSKIY	03/11/2011	03/02/2012	Complex problem
32092/02	YAREMENKO	12/06/2008	12/09/2008
30663/04	LUTSENKO	18/12/2008	18/03/2009
16404/03	SHABELNIK	19/02/2009	19/05/2009
22313/04	LEONID LAZARENKO	28/10/2010	28/01/2011
48057/06	SERGEY AFANASYEV	15/11/2012	15/02/2013
34592/06	OMELCHENKO	17/07/2014	17/10/2014
17735/06	CHOPENKO	15/01/2015	15/04/2015
15102/10	SOBKO	17/12/2015	17/03/2016
7918/07	KURIPKA	10/11/2016	10/11/2016
23040/07	GELETEY	24/04/2018	24/04/2018
14486/07	MALYY	11/04/2019	11/04/2019
52571/11	SIYANKO	09/01/2020	09/01/2020
44801/13	GALAMAY	24/06/2021	24/06/2021

·  Fostering human rights in the criminal justice system in Ukraine ·  Supporting implementation of the European human rights standards in Ukraine ·  Support to the functioning of justice in the war and post-war context in Ukraine

Case description

This group of cases concerns the applicants’ convictions, between 2002 and 2011, on the basis of self-incriminating statements made in the absence of a lawyer and in circumstances giving rise to a suspicion that the confessions had been given against the applicants’ will (violations of Article 6 §§ 1 and 3 (c)). The Court noted in particular:

·         the formal placement of some of the applicants under administrative arrest while in fact treating them as criminal suspects, thus depriving them of access to a lawyer, which would have been obligatory had the applicants been formally charged with the criminal offences they were questioned about;

·         the waivers whereby some of the applicants allegedly renounced their rights to a lawyer were signed in questionable circumstances;

·         the initial classification in some cases of the crimes investigated as less serious ones not requiring obligatory legal representation, resulting in effective denial of appropriate legal assistance.

In the Balitskiy case, the Court stressed the structural nature of the problem regarding the malpractices of using administrative arrest to ensure the availability of a person as a criminal suspect and of initial “artificial” under-charging to classify the alleged offence under an article of the Criminal Code which did not require obligatory legal representation. The Court indicated under Article 46 that specific reforms in Ukraine's legislation and administrative practice should be urgently implemented to ensure compliance with Article 6 and avoid further repetitive complaints of this type.

Several of the cases in the Balitskiy group also concern violations of Articles 3, 8 and 34, which are examined in the Kaverzin/Afanasyev, Nevmerzhitsky, Lutsenko (No.2), Sergey Volosyuk and Naydyon groups of cases, respectively.

Status of execution

The Committee of Ministers examined the execution of these cases during its 1294^th meeting in September 2017. It welcomed the introduction of the 2012 Criminal Procedure Code (CCP) and the Law on the Free Legal Aid (FLA) and considered that their provisions appear capable of remedying the shortcomings identified by the Court in this group by, in particular, providing for legal representation to all detained, accused or suspected persons, whether under administrative or criminal arrest. The authorities were also urged to continue taking all necessary measures, including relevant awareness-raising and capacity-building, to ensure that the provisions of the CPC are effectively implemented from the commencement of deprivation of liberty by all relevant actors in the judicial system. The Committee also invited the authorities to provide information about the outcome of all the re-opened domestic proceedings and the reasoning used by the courts.

In response to the Committee’s last decision, the Ukrainian authorities submitted an updated action plan on 28 March 2024 (see DH-DD(2024)372 for full details), which can be summarised as follows:

Individual measures

a)     Just satisfaction

The just satisfaction was paid in all cases where it was awarded by the Court except for the cases of Omelchenko and Sergey Afanasyev, where the amounts were returned to the State Budget as unclaimed within one-year period.

b)     Reopening of the impugned criminal proceedings FLA

Three applicants[1] have not lodged requests for reopening of the impugned proceedings within the timeframes prescribed by the legislation.

The state of play in respect of 11 applicants, who did request reopening, can be summarised as follows:

One case[2] was reopened and re-examined by the Supreme Court which excluded the evidence obtained in breach of the Convention from the corroborating evidence used for the purposes of conviction and reconfirmed the original verdict;

In the remaining ten cases the Supreme Court allowed the applicants’ request for reopening and sent the cases for a fresh consideration to the lower courts. As a result:

·          Three applicants[3] were acquitted or criminal proceedings against them were terminated, two applicants[4] were convicted anew, however, the evidence obtained in breach of the Convention was excluded from the record. The applicants did not appeal against these verdicts;

·         One case[5] is suspended because the applicant was put on a wanted list;

·         Two cases[6] are pending before the courts of first instance or under pre-trial investigation;

·         The Ukrainian authorities noted that they are not in position to provide information as regards the situation of two applicants[7] as their cases were remitted to the courts located on the territories outside their control.

c)     Closure of cases

The authorities requested the Committee to close the supervision of the following cases, in which no further individual measures were required or possible: Siyanko, Kuripka, Omelchenko, Chopenko, Sobko, Malyy, Shabelnik, Galamay and Lutsenko.

General measures:

1)     Legislative framework

According to the CCP adopted in 2012, the admissibility of evidence in criminal proceedings depends on its acquisition in accordance with the procedural law. Evidence obtained in violation of human rights shall be declared inadmissible, as outlined in Article 87 of the CCP.Inadmissible evidence cannot be used for taking procedural decisions, it cannot be referred to by the court in its rulings. Moreover, the suspicion and accusations cannot be based on evidence obtained illegally. Individuals cannot be compelled to testify against themselves or their close relatives, as per Article 18 of the CCP. Furthermore, the 2012 CCP no longer retains the concept of “appearance with confession” as previously set out in the legislation, which used to have prejudicial meaning for the subsequent trial.

Ensuring the accused person's right to defence is a fundamental principle of the criminal procedure. The CCP specifies rights for suspects, such as the right to benefit from the assistance of a lawyer upon request, participation of a lawyer in questioning, and the right to refuse legal counsel at any point in the proceedings. Additionally, participation of a defence counsel in criminal proceedings for grave crimes is mandatory. Waivers of the right to legal representation can be permitted only after the suspect or accused has been allowed to consult confidentially with his lawyer and must be given in the presence of his lawyer and duly documented. The 2013 FLA Law guarantees the right to free legal aid for all suspects or accused persons in detention, whether such detention is pursuant to an arrest under CCP or Administrative Offences Code.

2)     Practice of the domestic courts

The authorities provided information concerning the Supreme Court’s case law as regards the implementation of the abovementioned guarantees in line with the Convention requirements. In addition, between 2021 and 2023 the Supreme Court published a number of case-law reviews where it provides guidance to the lower courts on the inadmissibility of evidence obtained through human rights violations.

3)     Administrative practice

The previously reported pilot project of the National Police, the "custody records system," which ensures automated video recording of all actions taken in respect of detainees at temporary detention facilities and prompt responses to violations of detainees’ rights, has expanded. The Ukrainian authorities also reported on the efforts of the Ministry of Internal Affairs in collecting statistical data concerning provision of legal aid to those brought in for detention.

The FLA system continues to provide swift, free-of-charge legal services to everyone charged under the provisions of the Criminal Code or detained under the Code of Administrative Offences. The authorities reported about expansion of the FLA lawyers’ network and extensive dissemination of the information on the right to a lawyer which minimize risks of violations and enhance legal protection.

4)     Awareness raising and other measures

The authorities provided information about a large number of seminars, training and educational events held for judges, prosecutors, law-enforcement officers on the rights of accused, including those held under the auspices of technical cooperation projects of the Council of Europe.

Analysis by the Secretariat

Individual measures:

1) Just satisfaction

In the cases of Omelchenko and Sergey Afanasyev, the authorities should ensure that the sums awarded are at the disposal of both applicants if they appear to claim them, even after the one-year period provided for in Ukrainian legislation.

2) Reopening of the impugned proceedings

It is welcomed that in almost all cases where the applicants have requested reopening of the impugned proceedings, the Supreme Court quashed the initial decision and remitted the cases to the first instance courts for a fresh examination, where such a remittal was required and where the Supreme Court could not resolve the matter at hand on its own, within the limits of its own jurisdiction and authority. As a result, the applicants’ rights can be considered as restored in five cases in which a re-trial took place and the
self-incriminating statements or confessions obtained in violation of the Convention were excluded from evidence.

As regards the Siyanko case, in which the Supreme Court reviewed the applicant’s case without sending it for a fresh consideration to a lower court, the applicant’s complaint in respect of this review is currently pending before the European Court.[8] Therefore, before making any further analysis of the individual measures taken or outstanding, the Committee may wish to wait for the assessment that the European Court is called on to make in this case.

Finally, while the authorities cannot account for the blockages in the reopened proceedings where the applicant is absconding or there is objectively no access to a case file, in the cases of Balitskiy and Yaremenko, where the proceedings have been pending since 2012 and 2015 respectively, authorities should be called upon to finalise those proceedings as a matter of priority, as well as to provide information as to the investigation into the allegations of ill-treatment of the applicants.

3) Cases where no further individual measures are required

The Committee may wish to close its supervision of the five cases, Kuripka, Chopenko, Sobko, Malyy, Shabelnik, where no further individual measures are required given that the just satisfaction, where awarded, has been paid and the applicants either have not requested reopening or due regard was given to their right to defence during the fresh proceedings. Additionally, no further individual measures are necessary as regards violations of Articles 3 (conditions of detention and holding the applicant in a metal cage pending trial), 8 (correspondence with relatives) and 34 (provision of copies from the case file) in the cases of Kuripka and Malyy as the applicants are no longer in detention.  

General measures

The Committee has been supervising the execution of the judgments in this group since 2012, when the Court issued its first judgment, in line with its indications under Article 46 of the Convention that Ukraine must urgently implement legislative and administrative reforms to address the Court’s conclusions.

The authorities addressed these indications by adopting the new CCP and the FLA Law, which were enacted in 2012-2013 and provided for an extensive range of human rights safeguards in the criminal proceedings, including access to a lawyer, free legal representation and solid standards on the admissibility of evidence.[9] Furthermore, domestic courts may now base their conclusions only on the testimonies and evidence that they directly obtain during the court hearing and cannot take decisions based on the testimonies and evidence obtained at the pre-trial investigation stage[10], whereas before such reform most of the abuses used to occur at the pre-trial stage of the proceedings.

While the new legislation appeared capable of remedying the shortcomings identified by the Court in this group, further steps were required to ensure effective and coherent implementation thereof. During the last examination of this group by the Committee drawbacks were reported to persist in practice, such as for example “informal questioning” in the absence of lawyers, delay in lawyer’s arrival and lack of confidentiality of lawyer-client communications.[11]

Nevertheless, the information currently at the disposal of the Committee suggests that the practice of the application of the new legislation has improved significantly over the recent years both at the administrative and judicial levels, which is a welcome development.

Notably, during its most recent visit in Ukraine in 2023, [12] the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)found that, as a rule, the police swiftly informed FLA centre about person’s apprehension; persons in police custody were quasi-systematically questioned in the presence of (usually ex officio) lawyers; most of the detained persons confirmed that they had been allowed to speak with their lawyer in private prior to the interview. At the same time the CPT also noted that in a few instances, detained persons said that the interview had started before the arrival of the lawyer. Similar shortcomings were detected by the Ukrainian Ombudsperson earlier in 2021 and 2022.[13]

As regards the judicial practice, the Supreme Court’s efforts for the consolidation of practice on the admissibility of evidence and the protection of defendants' rights should be welcomed. The case-law reviews and examples referred to by the authorities demonstrate a proactive approach to ensure that only evidence collected lawfully can corroborate conviction. The Supreme Court tends to interpret the existing procedural guarantees lato sensu in order to ensure that the defendants have not theoretical or illusory rights, but that their rights that are practical and effective, in line with the Convention’s requirements.

As demonstrated above, Ukraine’s continuing efforts to address the structural problem revealed by the Court in the present grout of cases have resulted in significant changes in the criminal justice system both at the legislative and practical levels. It should be further noted that not a single judgment has been transmitted from the Court to the Committee of Ministers establishing similar violations in respect of the facts postdating the adoption of the new legislation.

Although the outstanding individual measures remain to be undertaken and the practical implementation of the existing safeguards may require further fine-tuning, it appears that the structural problem revealed by the Court in this group of cases is no longer persistent. The Secretariat therefore proposes to trigger down these cases to the standard supervision procedure, in line with the Committee’s practice.

Financing assured: YES