On 29-30 August and 26-27 September 2024, the Council of Europe, within the framework of the projects "Support to the functioning of justice in the war and post-war context in Ukraine" and "Fostering Human Rights in the Criminal Justice System in Ukraine", together with the Supreme Court and the OSCE projects ‘Guaranteeing Respect for Human Rights in the Administration of Justice (Phase II)’ and ‘Support to the Supreme Court and Higher Courts in Implementing Judicial Reform and Ensuring Access to Justice in Times of War’, supported roundtables on current case law of the European Court of Human Rights.

During the events, the participants discussed human rights standards and their implementation in Ukraine, in particular in the context of right to life, prohibition of torture and inhuman and degrading treatment (Articles 2 and 3 ECHR), right to liberty and security of person (Article 5 ECHR), right to respect for private life and correspondence (Article 8 ECHR), right to a fair trial (Article 6 ECHR), and the principle of legal certainty in the case law of the European Court of Human Rights.

The participants had the opportunity to discuss the following issues:

• the validity of court decisions on the selection and extension of a preventive measure in the form of detention
• evaluation of evidence and requirements for its admissibility in the context of the relevant ECHR case law;
• effective investigation of allegations of murder and ill-treatment;
• interference with private life, in particular in the context of search and inspection of the scene;
• highlighted in the ECHR judgements in cases against Ukraine in 2022-2023;
• the application of the principle of legal certainty and subsidiarity in the ECHR case law;
• violations of the right to peaceful enjoyment of possessions, ascertained in cases against Ukraine in 2022-2023.

The events were attended by judges from Kyiv, Cherkasy, Kropyvnytskyi, Kherson, Mykolaiv and Zaporizhzhia regions of Ukraine.

As part of his report on the key issues identified by the ECHR in its judgments in cases against Ukraine, President of the Supreme Court Stanislav Kravchenko noted that in 2023, the European Court of Human Rights delivered 130 judgments in cases against our country. At least one violation of the Convention was found in 123 of them. At the same time, the violations found by the Court are mainly related to systemic problems, the solution of which depends on the joint efforts of all state authorities of Ukraine, including the national courts of all three instances.

That is why, according to the President of the Supreme Court, systematic study, understanding and further effective application of the ECHR case law and strict compliance with the requirements of the Convention is an extremely important component that promotes the observance of human rights in the administration of justice.
In his speech, Stanislav Kravchenko also analysed the key systemic problems identified by the ECHR in its judgments against Ukraine. The President of the Supreme Court stressed that the war has brought severe challenges to our country, one of which is to demonstrate to the world by its actions that Ukraine remains a democratic state governed by the rule of law and human rights, which are of the highest value. The judiciary also faces this challenge: the decisions of national courts must be perceived by the entire international community as fair, reasonable and in line with ECHR judgments, European standards and established international practice.

During the event, which took place in September, the Commissioner for the European Court of Human Rights Margarita Sokorenko drew the judges' attention to the fact that the application by courts of a preventive measure in the form of detention is one of the most common types of deprivation of liberty in criminal proceedings, and accordingly, it is the subject of one of the most common complaints to the European Court of Human Rights.

In this regard, in recent years, the number of judgments against Ukraine on violation of Article 5 of the ECHR has been increasing, in which the European Court often emphasises the absence or insufficiency of justification in the decisions to impose a preventive measure in the form of detention.

Given the systemic nature of the problems with the legality of detention under Article 5 of the ECHR, as identified by the European Court, the relevant group of cases - Ignatov/Korneikova v. Ukraine - is under enhanced supervision of the CoE CM.

The problems stated in the judgments included in this group of cases have already been partially resolved by the CPC of Ukraine adopted in 2012 and subsequent amendments to it.

The next important step in addressing the problem of prolonged detention is to improve the practice of national courts in terms of appropriate and sufficient justification of decisions authorising detention and the application of alternative measures of restraint.

The following speakers also took part in the discussion:

• Oleksandra Yanovska, judge of the Supreme Court, National Consultant of the Council of Europe
• Natalia Marchuk, judge of the Criminal Court of Cassation within the Supreme Court
• Rasim Babanly, First Deputy Chief of Staff of the Supreme Court
• Markiyan Bem, attorney-at-law, partner at Nazar Kulchytskyi and Partners, OSCE National Expert
• Nazar Kulchytskyi, attorney at law, partner at Nazar Kulchytskyi and Partners, national expert of the Council of Europe
   

These events are part of a series of roundtables dedicated to discussing at the regional level the application of ECHR standards in the light of the case law of the European Court of Human Rights. The previous events took place in April and July 2024 with the participation of judges from Odesa and Vinnytsia, Chernihiv, Zhytomyr and Sumy regions of Ukraine.

In total, the experience exchange platform thus created with the support of the Supreme Court provided an opportunity for more than 150 judges to discuss these issues with experts and judges of the Supreme Court in an offline format.

The Council of Europe projects express their sincere gratitude to the Kyiv Court of Appeal for providing assistance in holding these events, which made it possible to hold them offline in compliance with all security measures.

Additional publications about the events:

https://www.facebook.com/share/p/17eeoutioh/

https://supreme.court.gov.ua/supreme/pres-centr/news/1593606/

https://supreme.court.gov.ua/supreme/pres-centr/news/1640994/