Module: “Judicial Proceedings in Criminal Cases Involving Corruption Offenses” The Criminal Practice School at Legal High School concluded with a lecture by Oleksandr Shadrin, a partner at Barristers Law Firm, who discussed the prospects of complaints filed with the European Court of Human Rights (ECHR) by public officials convicted in Ukraine.

Appeals to the ECHR are a powerful “conventional” mechanism that allows for the effective protection of the rights and freedoms of individuals—citizens of a state that has ratified the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention)—within its territory, the lecturer emphasized. Oleksandr Shadrin identified the key problem areas in the national criminal process—a list of violations committed during pretrial investigations or court proceedings in criminal cases, which open the way for those convicted in Ukraine to seek redress in Strasbourg.

One of the systemic problems of the Ukrainian law enforcement system is the ineffective investigation of crimes involving the use of torture. The launch of the new agency—the State Bureau of Investigations—has not improved this situation, Oleksandr Shadrin emphasized, since procedural oversight is carried out by the same agency that prosecutes cases in court. Equally relevant for Ukraine today is the issue of violations of the presumption of innocence, as well as compliance with reasonable time limits for the adjudication of cases.

Another problem area for criminal proceedings is the established practice of applying pretrial measures. Oleksandr Shadrin discussed a recent decision by the Constitutional Court of Ukraine (dated June 25 of this year), issued in the case involving constitutional complaints filed by Maryna Kovtun, Nadiya Savchenko, Ihor Kostoglodov, and Valeriy Chornobuk regarding the constitutionality of the provisions of Part 5 of Article 176 of the Criminal Procedure Code (CPC) of Ukraine. In this decision, the Constitutional Court of Ukraine ruled that the aforementioned provisions of the Code—which stipulate that preventive measures in the form of a personal undertaking, personal surety, house arrest, or bail may not be applied to persons suspected or accused of committing crimes provided for in Articles 109–114-1, 258–258-5, 260, and 261 of the Criminal Code of Ukraine. “Restrictions on the constitutional right to liberty and personal inviolability must be carried out in compliance with constitutional guarantees for the protection of human and civil rights and freedoms and exclusively on the basis of a reasoned court decision,” the Constitutional Court’s ruling emphasizes. In light of this decision by the constitutional court, the legislature’s intention to introduce a mandatory pretrial detention measure for corruption offenses, according to Mr. Shadrin, does not stand up to any scrutiny.

Although the European Court of Human Rights (ECHR) is, by its very nature, primarily a court of law, in cases involving official misconduct, the ECHR may assess the factual circumstances; in particular, it may find a violation of the right to a fair trial if the crime was provoked, since the principle of the presumption of innocence implies that the prosecution must prove the absence of any incitement on its part. “Unfortunately, national courts do not give this aspect the attention it deserves,” the lecturer concluded.