The European Court, the Right to Justice, and Mr. “No”

On November 14, the Barristers Law Firm, represented by partner Denis Ponomarenko and research advisor Boris Babin, won another case against Ukraine at the European Court of Human Rights regarding violations of the client’s right to a fair trial and access to legal remedies. Application No. 13707/19, Tretyak v. Ukraine, was heard in Strasbourg as part of the Bayrashevskyy and Others v. Ukraine decision. Unfortunately, it comes as no surprise that the ECHR found the nine-and-a-half-year (!) investigation of a criminal case to be unlawful—a case in which, among other things, the client was repeatedly acquitted thanks to the attorney’s excellent work. What is surprising is something else.

In this case, as well as in a number of other cases we are pursuing before the ECHR regarding excessively lengthy criminal proceedings, Ukraine’s government representative has presented the Court with an extremely intriguing position on behalf of the state. While respecting the confidentiality of the European Court’s proceedings, I will offer a general summary of the Ministry of Justice’s position across various cases. It boils down to the fact that, first, even a dozen or so investigative actions taken before the case was referred to court (it would be strange if there were none at all in the case file) already indicate a “bona fide investigation of the case.” Even if that was eight years ago.

The Commissioner also believes that if a prosecutor drags out the proceedings for years through numerous failures to appear in court, unfounded motions, prolonged review periods, and changes in the prosecution team, then this… not the state’s fault, since it is not the court but a party to the case (!) that is dragging out the proceedings. Naturally, the Ministry of Justice regards the failure of victims and prosecution witnesses to appear in court as almost the work of our clients, and by no means a problem of the state, which is incapable of organizing the proceedings.

Well, and when the judges themselves drag out the proceedings, the government representative suggests that Strasbourg consider this … valid reasons. The Ukrainian authorities propose that the European Court of Human Rights classify judges’ sick leave, vacations, and business trips as such valid reasons, as well as the postponement of hearings due to power outages in the courthouse or because the courthouse was “mined.” I suppose a defendant in a Ukrainian court should bring his own generator and mine detector.

Well, in the aforementioned decision of November 14, the ECHR wrote the following regarding the government representative’s comments on a specific application: “The Court found NOT A SINGLE convincing fact or argument that would have allowed it to reach a different conclusion regarding the admissibility and substance of these applications.” Perhaps the government representative should nevertheless take into account in the future the Court’s position regarding his rather extravagant objections, which have apparently become a vicious cycle within Ukraine’s Ministry of Justice.  And he should start saving taxpayers’ money on envelopes and paper by stopping the practice of sending such “objections” to Strasbourg…

https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-198466%22]}