Violations of the Right to Defense Lead in Ukrainian Courts, - IAC ISHR Report
The monitoring mission of the Information and Analytical Center of the International Society for Human Rights (IAC ISHR) has prepared the final report for 2024 “Observance of the right to a fair trial in Ukraine.” This was announced by the coordinator of the IAC ISHR monitoring mission, Anastasia Alekseeva, during the VII International Criminal Law Forum, which took place on February 11 in Kyiv. With this document, the organization resumed the annual monitoring report on the observance of the right to a fair trial in Ukraine, which it has been doing since 2017 and which was suspended in 2022 due to full-scale hostilities. The conclusions of human rights defenders are based on the results of monitoring 90 court hearings in 2024, in which 193 human rights violations were recorded. Traditionally, the report consists of three parts: the first part - a review of negative trends identified in the field of justice, the second part - an analysis of the collected statistical data and the third part - reports on monitoring court hearings, which became the source of the preparation of the report itself.
MAIN CHALLENGES: JUSTICE UNDER PRESSURE
The judicial system is an instrument that should protect human rights. However, this year, experts from the IAC ISHR monitoring mission identified alarming trends, including: violations of the right to defense, failure to comply with the principle of equality and adversarial proceedings, bias of judges, violations of the right to access to justice, etc.
Positive trends were also identified - cases of incorrect use and/or ignoring the practice of the ECHR, inclusion of “doubtful” evidence in the evidence base have significantly decreased. In 11% of hearings, no violations were identified. This indicates the potential for change that should be developed.
STRUGGLE FOR THE RIGHT TO DEFENSE
The most worrying violation of the right to defense remains, which IAC ISHR observers recorded in 43% of hearings. Particularly noticeable is the practice of judges interpreting the submission of “inconvenient” procedural documents as an abuse of the right to defense, appointing lawyers from the free legal aid center against the wishes of the suspect or accused, etc. Also of concern are the automatic extension of detention and the justification of pre-trial detention (in 28% of hearings). With the same frequency, the monitoring mission experts mentioned violations of the equality of parties in the trial and adversarial nature (in 28% of hearings). The experts also highlighted the bias of the court (in 13% of hearings) and access to the court (in 12% of hearings). Torture, inhuman and degrading treatment and punishment were also recorded in 11% of hearings. Three violations of reasonable deadlines were recorded with the same frequency.
In the report, experts from the IAC ISHR monitoring mission compared the indicators of violations in the courts studied in 2020 and concluded that “in general, all courts showed an increase in the average number of violations per session. However, in the situation with the High Anti-Corruption Court and, especially, with the Shevchenkivskyi District Court of Kyiv, this increase is relatively insignificant. This may indicate a certain stability of this indicator in the two courts,” the report states. If in 2020 an average of 1.5 violations per session was detected in the work of the High Anti-Corruption Court, then in 2024 the indicator became 1.9. Accordingly, the Kyiv Court of Appeal changed the indicator from 0.5 violations to 2.8 in 4 years; the Pecherskyi District Court of Kyiv - from 1.4 to 2.6 violations; Shevchenkivskyi District Court of Kyiv - from 0.9 to 1 violation.
Interestingly, the results of monitoring the observance of the right to a fair trial indicate that the situation in the High Anti-Corruption Court does not differ much (for better or worse) from courts of general jurisdiction.
Human rights defenders who participated in the study paid special attention to the fact that the most common violations recorded during the monitoring of the HACC were violations of the right to defense and failure to observe the principle of equality of arms. These same violations were among the three negative trends that IAC ISHR observers encountered in general during the monitoring of court hearings in 2024. This confirms the fact that the creation of a specialized court in itself does not guarantee an improvement in the quality of justice.
A vivid example of this is the appointment of lawyers from the Center for Free Secondary Legal Aid against the wishes of the suspect/accused, which may pose a threat to the creation of an illusory (from the point of view of the practice of the ECHR) observance of the right to a fair trial. However, in fact, it can be used to legitimize the process in terms of formally ensuring the right to defense in the event that the lawyer under the contract disagrees with the court's position. Such cases occurred, in particular, in the case of the former Head of the State Property Fund of Ukraine.
The automatic extension of detention is manifested in the formal attitude to the assessment of risks that justify the use of detention or its extension. The template copying by the prosecution of such risks at various stages of the pre-trial investigation remains without proper verification by the court. Cases of such repeated violations by judges of the Pechersksky District Court of Kyiv and the Kyiv Court of Appeal were recorded, in particular, in the case of a former People's Deputy of Ukraine.
The 2024 report also paid special attention to the violation of the principle of equality and adversarial proceedings, which was recorded in various cases considered, in particular, by judges of the HACC. For example, in the case of the ex-chairman of PrivatBank, the former Head of the Supreme Court, etc. Thus, in the case of the ex-chairman of PrivatBank, the judges recognized the defense's application to disqualify the panel of judges as an abuse of procedural rights. The reason for the recusal was that when making a procedural decision, the judges referred to documents that, according to the defense, were not even examined in the court session. In addition, IAC ISHR observers noted that judges are increasingly recognizing the submission of “inconvenient” procedural documents as an abuse of their rights by lawyers, as, for example, in the case of a judge of the Pecherskyi District Court of Kyiv, when the submission of motions by the lawyer became the basis for filing a disciplinary complaint against him. And this formulation of “abuse” has become a certain trend. Another example of a violation of the right to defense was holding a hearing in the absence of defense lawyers, as, for example, in the case of the former heads of PrivatBank. This, as human rights activists note, contradicts the spirit of the European Convention because it can put suspects/accused at a disadvantage, limiting the opportunity to implement their defense.
Also, in the case of the former Head of the Supreme Court, the HACC judges granted the prosecution permission to use as evidence documents generated after the indictment was submitted to the court. Such actions effectively create unequal opportunities for the parties to the proceedings, calling into question the principle of impartiality of the court.
JUSTICE AS A HOPE FOR CHANGE
Experts of the IAC ISHR monitoring mission also pointed out the issue of bias of judges. The report states that doubts about the impartiality of judges are a fairly widespread problem that undermines trust in the judiciary and creates the basis for further human rights violations.
For example, experts of the IAC ISHR monitoring mission recorded the fact of bias of judges of the Kyiv Court of Appeal during the consideration of the appeal of a former People's Deputy of Ukraine, which was manifested in making a decision without examining key, in the opinion of the defense, evidence.
Bias was repeatedly recorded in the activities of HACC judges. Thus, in the case of accusations of a number of individuals of embezzlement of funds of the State Enterprise Energoatom, the judges demonstrated a clear disinterest in the process. This was manifested in the distraction of judges who looked out the window and used their phones. Such behavior may indicate bias on the part of the judges and raises concerns that the decision has already been made in advance.
Manifestations of bias were also recorded in the case of the former heads of PrivatBank. This concerns a potential conflict of interest of the presiding judge. 3 The video recording of the court session shows that the defense lawyers challenged the presiding judge, since he is the brother of one of the leaders of the law firm representing the victim in this case. The position in the law firm, which the presiding judge's sister holds, involves her in the management of the firm, the development of business activities and the distribution of profits. Accordingly, she has an interest in this case. This, as the defense argued, creates a potential conflict of interest between the private interest and the official powers of the presiding judge. According to the position of the ECHR, the very fact of the existence of close family ties can be regarded as a factor that raises reasonable doubts about the impartiality of the court. According to the established practice of the European Court, any judge in respect of whom there are legitimate grounds for fearing a lack of impartiality must recuse himself. However, in the case of the ex-chairman of PrivatBank, the presiding judge did not recuse himself, and the panel of judges refused to recuse him upon the application of the defense.
The problem of access to court also remains important, which manifests itself in the failure to ensure the right to a hearing within a reasonable time. A vivid example is the ineffectiveness of appeals, repeatedly recorded by IAC ISHR observers, since appeals are considered after the expiration of the term of the appealed decisions. This is due to the unstable situation in the country, the lack of judges and excessive workload. However, as human rights activists argue, even such objective obstacles should not burden individuals whose rights are at risk of violation.
The Information and Analytical Center of the International Society for Human Rights is a division of an international non-governmental human rights organization, uniting about 30,000 members in 38 countries around the world. The organization has consultative status with the UN Economic and Social Council, the Council of Europe, and observer status with the Organization of African States.