In recent times, Ukraine has emerged as a number one contributor to the variety of purposes submitted to the European Courtroom of Human Rights (ECHR). In 2022, Ukraine ranked third amongst all states when it comes to human rights violation complaints. The ECHR’s 2022 report reveals that Ukraine obtained 10,400 complaints, representing 14% of the overall circumstances – writes Serhii Voichenko.
Statistics point out a troubling pattern. In 2021, the ECtHR issued 144 choices on circumstances towards Ukraine, with 141 (97.8%) recognising a minimum of one violation of human rights. In 2020, the Courtroom discovered a minimum of one violation in 95.3% of circumstances, rising to 98.4% in 2021.
A better take a look at current years’ statistics highlights important points inside Ukraine’s justice system, significantly regarding the presumption of innocence and respect for human rights all through the legal course of, together with the precise to defence. This example casts Ukraine in an unfavourable gentle amongst European companions and the broader worldwide neighborhood, jeopardising its prospects for EU and NATO membership.
To discover these challenges additional, we spoke with Serhii Voichenko, a distinguished lawyer, PhD, and managing associate of the “Voichenko and Dulskyi” Bar Affiliation. Voichenko emphasises that the selections of the ECtHR ought to function a mannequin for Ukrainian justice, underscoring the significance of aligning nationwide practices with European human rights requirements.
Your bar affiliation is famend for its important variety of profitable circumstances on the ECtHR. Concurrently, your legal professionals are actively concerned in reforming the judicial system to align with European requirements. In your opinion, what’s the cause that Ukraine has constantly been among the many prime 5 nations with the very best variety of human rights violations circumstances for a number of years?
The very fact is that non-compliance with human rights has been a longstanding subject.
As we speak, it’s turning into important for our state’s world picture. Corruption, incompetence, and irresponsibility have an effect on practically all branches of presidency to some extent. Recall the state of affairs 5-10 years in the past.
At the moment, the legislation enforcement and judicial methods successfully collapsed. Below the guise of reforms and lustrations, completely populist measures have been applied, leaving the legislation enforcement system severely weakened. The dearth {of professional} personnel made it unimaginable to adequately tackle offences, together with these dedicated by prime officers.
This subject permeated your entire system, from the previous Common Prosecutor’s Workplace to the district courts. Consequently, investigations and verdicts have been usually primarily based on both unsubstantiated proof or populist or commissioned motives. Consequently, individuals are compelled to show to the ECtHR, looking for actual authorized safety towards the corruption schemes which have devastated people, their reputations, companies, well being, and households.
Might you elaborate on the motives behind the stress and the targets pursued by the organisers of such schemes?
In all home legislation enforcement companies, the directive for focusing on a selected enterprise or particular person is known as “nightmaring the shopper.”
This time period implies subjecting the goal to most stress—initiating a legal case towards them, disrupting their routine, and putting them in a tough place to realize a bonus, both for the company itself or for the shopper who requested the motion. This benefit might be materials, corresponding to monetary acquire, or conditional, as an illustration, if the goal is obstructing the shopper’s pursuits indirectly.
If the goal holds a major place in society and the initiation of legal proceedings on a falsified pretext turns into too conspicuous and ineffective, different assets are employed. These primarily embody mass media and social networks, that are utilised to harass the person, making it exceedingly tough for them to revive their status.
- Based mostly in your expertise of defending the rights of Ukrainian residents on the ECHR, are you able to recall any distinctive or significantly compelling circumstances?
- Every case is exclusive and difficult in its personal manner. Behind the handfuls of volumes of paperwork lies a person’s destiny and their proper to a good and neutral trial. We’ve got dealt with circumstances that we initially doubted would succeed even in Europe, but, towards the chances, we achieved justice for our purchasers.
- Among the many current circumstances, one significantly stands out, which I’m at the moment engaged on with my associate, Oleksandr Dulskyi. That is the case of Oleksiy Omelianenko. It’s distinctive as a result of, virtually for the primary time within the historical past of Ukrainian circumstances, the ECtHR determined to proceed on the consideration stage with out awaiting a verdict from our nationwide courts. Usually, the ECtHR points its choice solely after the Ukrainian court docket has rendered its judgment.
Certainly, it was an uncommon occasion! What was the explanation behind it?
Initially, the procedural violations within the case have been so flagrantly unlawful and evident that the European judges didn’t have to attend for a choice from their Ukrainian colleagues to recognise the violation of our shopper’s rights.
To make clear, let me clarify step-by-step. In 2017, legal proceedings have been initiated towards Ukrgasbank, and subsequently, Oleksiy Omelianenko turned concerned within the case.
He was accused of embezzling 68 million hryvnias from the already nationalised Ukrgasbank. The Division for Investigating Particularly Vital Instances within the Financial Sector of the Prosecutor Common’s Workplace took cost of the case. This division, in response to numerous sources and media definitions, was established to exert stress on opponents and provoke contract legal proceedings. Notably, the previous deputy head of this division was lately sentenced to seven years for related corruption violations.
Precisely which of Omelianenko’s rights have been violated?
There have been quite a few violations, a lot in order that the outline within the grievance to the ECHR spanned a number of dozen pages. The important thing level highlighting the ordered nature of the case is that, in response to the jurisdiction outlined by the Felony Process Code of Ukraine, Omelianenko’s case ought to have been investigated by the Nationwide Anti-Corruption Bureau of Ukraine (NABU), not the Common Prosecutor’s Workplace. Why?
As a result of NABU was established in 2016, and the case towards Omelianenko was registered a 12 months later, clearly falling beneath NABU’s jurisdiction. In accordance with the legislation, circumstances that fall beneath NABU’s jurisdiction can’t be investigated by different our bodies. Thus, there was a gross procedural violation proper from the registration stage of this legal continuing.
Then why didn’t NABU take up the Omelianenko case itself?
Initially, I doubt that NABU would have recognized any indicators of criminality on Omelianenko’s half. NABU was lately established beneath stress from our Western companions, who additionally permitted its management. It’s unlikely that NABU would need to undertake such a questionable job towards Omelianenko.
Secondly, all proof and indicators counsel that the case towards Omelianenko was completely fabricated. As beforehand talked about, the Division for Investigating Particularly Vital Instances within the Financial Sector of the Prosecutor Common’s Workplace was basically created for “ordered” circumstances. Thus, it isn’t shocking that this case ended up of their palms.
Relating to essentially the most egregious violations on this case, one other important issue is the improper dealing with of our shopper’s entry to case supplies and procedural paperwork. Omelianenko was barely allowed to overview the paperwork and case supplies and was merely confronted with the information with none clarification or clarification of his rights, and was pressured to signal the papers they ready.
On condition that the case was contrived and there was no precise violation of the legislation by Omelianenko, the investigation dragged on because it didn’t uncover any unlawful actions that might rise up in court docket. This brings us to the third important occasion of arbitrariness: the blatant disregard for the investigation’s timeline.
In accordance with Clause 4 of Half 3 of Article 219 of the Felony Process Code of Ukraine: “From the date of notification of an individual of suspicion, the pre-trial investigation should be accomplished inside two months from the date of notification of the particular person of suspicion of committing against the law.”
This deadline had expired. Though the pre-trial investigation might be prolonged, it should comply with a selected process and timeline as stipulated by the Felony Process Code. This implies prosecutors should apply to an investigating choose for an extension, who then examines the validity of the request and decides whether or not to grant or deny it.
Below Clause 10 of Half 1 of Article 284 of the Felony Process Code of Ukraine, legal proceedings should be closed if, after notifying an individual of suspicion, the pre-trial investigation interval as outlined by Article 219 has expired, besides in circumstances involving severe or significantly severe crimes towards an individual’s life and well being.
The Constitutional Courtroom of Ukraine, in its choice dated January 30, 2003, No. 3-рп/2003, emphasised: “Thus, the legislation establishes a common rule – the pre-trial investigation should be accomplished inside two months, and the extension of this era is an exception to this rule. Adherence to the deadlines of the investigation is among the circumstances for the fast and full disclosure of crimes.”
Subsequently, beneath any circumstances, the pre-trial investigation interval shouldn’t exceed the bounds of necessity. The investigation should be accomplished promptly with out violating the precise to a good trial and the precise to an efficient treatment, as offered in Articles 6 and 13 of the Conference on the Safety of Human Rights and Basic Freedoms.
In an try and salvage the failing case, the prosecutors sought an extension of the pre-trial investigation interval from the court docket. Nonetheless, on June 6, 2018, the court docket denied this request.
Based mostly on the court docket’s choice to refuse the extension, the legal professionals filed a grievance with the Ukrainian court docket, arguing that, in response to Ukrainian legislation, if an extension is denied, the case should both be referred to the court docket instantly or closed.
On August 6, 2018, the court docket reviewed our arguments and dominated that the prosecutor should make a remaining choice within the case inside 5 days, in accordance with Article 284 of the Felony Code of Ukraine. This meant that by August 11, 2018, the prosecutor needed to both:
- Shut the case as a result of expiration of the pre-trial investigation interval, or
- Refer the case to court docket.
That’s, on August 11, 2018, the case ought to have been closed or referred to the court docket.
Nonetheless, the investigators of the Common Prosecutor’s Workplace defiantly ignored the selections of the Ukrainian courts and continued the unlawful legal prosecution of Omelianenko. They even initiated new proceedings from the case, even supposing the deadlines for these proceedings, in response to present laws, had lengthy expired. It is a clear violation of Half 2 of Article 283 of the Felony Process Code of Ukraine, which stipulates that after the top of the pre-trial investigation interval, the adoption of any procedural choices just isn’t allowed. Sadly, it appears that evidently the legislation doesn’t apply to the Ukrainian Common Prosecutor’s Workplace.
How do you assess the actions of the Ukrainian justice system on this case?
As an example the scenario extra clearly, let’s take a look at some particular examples. The court docket initially positioned our shopper in custody on April 18, 2018, with bail set at UAH 68 million on the request of the Common Prosecutor’s Workplace of Ukraine. Nonetheless, the appellate authority later diminished the bail quantity to UAH 7 million. After one among Omelianenko’s buddies paid the bail, our shopper was launched from custody.
But, regardless of this, the prosecutors quickly returned to court docket with a brand new demand for bail, this time for UAH 39 million, despite the fact that the unique bail had already been paid. This demand was completely groundless, however the choose of the Pechersk District Courtroom of Kyiv inexplicably granted the Prosecutor’s Workplace’s request, putting our shopper in custody once more.
To make issues worse, the court docket inexplicably set the bail at UAH 90 million, which is 2.5 occasions increased than the quantity demanded by the prosecutors. This blatant disregard for Ukrainian laws is unacceptable.
After the change of presidency, because of our efforts and the truth that some judges nonetheless adhere to the legislation, we managed to persuade the court docket to make a lawful choice, and our shopper was ultimately launched from custody beneath a private dedication.
Nonetheless, this was not the top. Omelianenko was charged beneath Article 191 of the Felony Code of Ukraine regarding occasions at Ukrgasbank in 2010. Article 191 applies to officers of an enterprise the place embezzlement or misappropriation of property passed off. Omelianenko had resigned from the financial institution six years earlier than the alleged crime, making it unimaginable for him to be prosecuted as an “official.”
Furthermore, the alleged legal occasions didn’t happen on the financial institution. The investigation absurdly tried to border a totally authorized debt switch operation between the financial institution and a shopper as a “legal deal.” If something, the financial institution really turned a number of tens of thousands and thousands richer from the transaction, somewhat than struggling any losses. Thus, there was no embezzlement or misappropriation.
For actions to be certified beneath Article 191, there should be confirmed losses, which have been absent on this case. Moreover, Omelianenko had no connection to the corporate concerned—not as a founder, worker, or particular person with a battle of curiosity.
Additional compounding the difficulty, the primary witness towards Omelianenko had a private vendetta and ulterior motives, which we’ll undoubtedly show as soon as the court docket begins contemplating the case.
One other witness, the previous director of the corporate that obtained the mortgage, agreed to testify towards Omelianenko solely after intense stress and intimidation from the Prosecutor’s Workplace. In alternate for his testimony, the prosecutors reclassified his case from Article 191 to Article 205 (fictitious enterprise), which was decriminalised at the moment, giving him a transparent private curiosity to slander Omelianenko.
Moreover, the indictment was handed to our shopper on January 1, 2020, as a “present” for the New Yr. The prosecutor was so careless after the celebrations that he handed over the unique indictment as a substitute of a replica, a gross violation of the Felony Process Code, warranting the court docket to return the indictment to the Common Prosecutor’s Workplace for correction.
There are numerous different violations and errors by the investigators that I may identify, however detailing all of them would lengthen our dialog indefinitely. To focus on the size of those violations, now we have ready over 240 complaints and statements about breaches of Ukrainian legislation concerning Omelianenko on the investigation stage for the preparatory court docket session.
Lastly, in 2020, the case was transferred to the Sviatoshyn District Courtroom of Kyiv. This additionally violated jurisdictional guidelines, because the trial ought to have taken place both the place the alleged crime occurred or on the physique that carried out the pre-trial investigation—within the Pechersk or Shevchenkivsky District Courts of Kyiv.
For greater than 4 years, as a consequence of quite a few violations in the course of the pre-trial investigation, Omelyanenko’s case has been caught in preparatory proceedings.
At what stage did the concept of submitting a grievance with the ECtHR come up?
Once we noticed that the quantity and brazenness of violations had crossed any acceptable restrict, we realised that it was pointless to count on justice in Ukraine for this case.
Consequently, Omelianenko, with the assistance of our bar affiliation, appealed to the European Courtroom of Human Rights (ECtHR). The grievance highlighted the primary indicators of lawlessness: the case was being investigated illegally, with all deadlines violated; he was detained unlawfully; and the preventive measures taken towards him have been unlawful, amongst different points.
Usually, one appeals to the European Courtroom of Human Rights after exhausting choices within the Ukrainian courts. Nonetheless, on this occasion, the violations of human rights have been so blatant that the ECtHR determined to contemplate the case with out ready for a remaining verdict from the Ukrainian courts.
Recognising the actual indicators of arbitrariness, the ECtHR carried out a complete and neutral overview of the case, together with the state’s objections. The ECtHR subsequently issued a choice towards Ukraine, acknowledging that the actions of the legislation enforcement companies towards our shopper have been unlawful.
Such systemic violations of human rights make it practically unimaginable to conduct common enterprise or reside a peaceable life in Ukraine. How for much longer will this proceed? One 12 months, two, 5 – it’s a rhetorical query.
I’m curious, how usually do court docket hearings on this case happen in Ukrainian courts?
That is one more blatant violation of Omelianenko’s rights, which the ECHR took under consideration. As a result of heavy workload of the courts, the case proceeds extraordinarily slowly—solely 5 classes per 12 months.
Ukrainian and worldwide legislation each recognise the precept of continuity in judicial proceedings. Each particular person, no matter guilt, has the precise to the immediate decision of their case. Nonetheless, with greater than two months between classes, this precept is clearly violated. This prolonged delay constitutes a type of psychological torture, leaving the accused in a state of uncertainty.
Ukrainian investigators even use a psychological tactic the place they inform the suspect that their case will drag on in court docket for ten years, making the trial itself a type of punishment.
The delays additionally counsel that nobody needs to be chargeable for a case with such evident corruption and manipulation. Judges know that any responsible verdict might be appealed to increased courts, and the ECHR will scrutinise any violations. On the similar time, an acquittal may imply going towards the system and disappointing those that orchestrated the fees.
This ends in a closed loop of authorized arbitrariness, which is tough to interrupt as a result of the “system” may retaliate. That is the difficult atmosphere during which we proceed to combat towards these violations.
Might you elaborate on how the system can affect judges?
All these mechanisms are well-documented in quite a few investigations. You’ll be able to simply discover dozens of reviews, full with particular names and quantities, by famend journalists and human rights defenders.
As an example, any native court docket choose is aware of that ignoring “pleasant requests” from higher-ups means forfeiting any probability of profession development, corresponding to turning into a choose in a better court docket.
Judges who go towards the system by closing doubtful circumstances and disrupting corrupt schemes danger being sidelined. Such judges could discover themselves caught in native courts for years, regardless of their expertise and {qualifications} for appellate positions. In some circumstances, they could even be framed or subjected to different types of retaliation.
This systemic stress severely impacts the standard of justice. Breaking this technique is important to constructing a affluent nation.
Will the choice of the ECtHR impression the Ukrainian courts in Omelianenko’s case?
We genuinely hope that the ECHR’s choice could have a major impression. This choice is unprecedented, because the European Courtroom of Human Rights often makes its rulings ex submit facto, after an individual has been convicted and all nationwide procedures have been exhausted.
On this case, nonetheless, the ECHR has already recognized a gross violation of the Conference on the Safety of Human Rights and Basic Freedoms on the preparatory proceedings stage.
This choice represents one other worldwide reprimand for our legislation enforcement system and Ukrainian justice. If the choice doesn’t have the specified impact, we’ll exhaust all doable response choices, together with reaching out to human rights organisations in Ukraine and Europe, the European Parliament, and the European Fee on Human Rights.
The ECHR’s choice is from the very best court docket and is binding on Ukrainian courts. Even the Ministry of Justice of Ukraine has recognised the violation of Omelianenko’s rights and paid the compensation decided by the ECHR.
To keep away from additional dishonouring the already tarnished status of our nation’s legislation enforcement and judicial methods, the fabricated and biased court docket circumstances towards Omelianenko should be halted instantly. Appearing in response to the legislation is easy, but the scenario in Ukraine stays unchanged. The choice of a revered European establishment appears to carry little sway with Ukrainian Themis.
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Lastly, I want to hear your opinion on the prospects for Ukraine’s legislation enforcement and judicial spheres. Is there any hope that professionalism and independence from the authorities will change into a actuality?
We hope that this can occur, however it should solely change into a actuality when the state genuinely commits to it. Sure adjustments are already underway. Some legislation enforcement officers and members of the judiciary are starting to understand that unlawful choices and actions have a boomerang impact—they inevitably come again.
Those that overtly violated the legislation yesterday, condemning or fabricating circumstances towards harmless individuals, usually discover themselves on trial tomorrow.
Is that this a results of a acutely aware and deliberate state coverage? I want to consider so, however the work has simply begun. Legislation enforcement is the elemental foundation of the state and a vital situation for its stability and improvement. With out it, lawlessness will prevail, resulting in social upheavals, revolutions, and unrest. Legal guidelines should be adopted from begin to end—that is an axiom for any democratic state.
If we need to see Ukraine as a democratic, affluent nation, attracting investments from all over the world and turning into a member of the European Union, we have to play by civilised guidelines and cling to our legal guidelines, that are absolutely democratic and permitted by European legislative our bodies.
Particularly now, as Ukraine fights desperately for its future and future, making certain honest justice and a virtuous legislation enforcement system is important to its sovereignty and survival. After our victory—and I’ve little question that we’ll obtain it—the corrupt shall be held accountable, and it is going to be extraordinarily tough for them to cover behind the previous protections.
I’m assured that Ukraine shall be accepted into the EU and NATO when the selections of the ECtHR change into an indeniable mannequin for the Ukrainian justice system, a typical of legality and respect for rights. This would be the key indicator that constructive adjustments have taken place and are right here to remain.