The most notable cases against Ukraine in the ECHR

Based on statistical data from the last decade, Ukraine is among the top three countries in terms of the number of applications to the European Court of Human Rights (ECHR). Only citizens of Turkey and the aggressor country filed more complaints than Ukrainians.

The ECHR most frequently finds Ukraine in violation of the right to liberty and security, the right to an effective remedy, the prohibition of inhuman or degrading treatment, issues related to the length of judicial proceedings, and the right to a fair trial.

This indicates a rather low level of efficiency in the judicial system and penitentiary service in our country, as well as the actual absence of the rule of law, which increasingly compels Ukrainians to seek protection of their declared rights and freedoms from the ECHR.

From 1959 to 2024, the ECHR has made approximately 2,000 judgments in cases against Ukraine, where violations of the Convention for the Protection of Human Rights and Fundamental Freedoms were found.

In this article, we will discuss the most famous of these cases, in my subjective opinion, as well as those that had the greatest impact on the formation of national judicial practice.

ECHR decision in the case of «Kharchenko v. Ukraine»

According to the circumstances of the case, the applicant was held in custody at the Kyiv SIZO from 20 April 2001 to 4 August 2003, where he claimed the conditions were inadequate and medical treatment was unsatisfactory. His actual pre-trial detention in poor conditions lasted almost 2 years and 4 months.

In paragraph 80 of the decision, it is noted that the initial order for the applicant’s detention cited the seriousness of the charges against him and the risk of him evading investigation. Subsequently, prosecutors and courts, when extending the applicant’s detention, did not provide the grounds for their decisions, merely referring to the initial preventive measure. However, after a certain period, the mere existence of a reasonable suspicion ceases to justify deprivation of liberty, and judicial authorities are obliged to provide other grounds for continued detention. Additionally, national judicial and law enforcement bodies never considered the possibility of an alternative preventive measure.

Moreover, in paragraph 85, it is stated that the decisions to keep the applicant in custody repeated a standard set of grounds without examining their relevance in the light of the specific circumstances of the applicant’s situation. The Court emphasises that continued detention can only be justified by the existence of a specific public interest that, despite the presumption of innocence, prevails over the principle of respect for individual liberty.

Therefore, according to the ECHR, an investigating judge/court, when considering a request for the extension of a preventive measure in the form of detention, must necessarily consider the possibility of applying other (alternative) preventive measures.

As a result, the ECHR found that in this case, there were violations of Article 3, paragraphs 1, 3, 4 of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and Ukraine was ordered to pay the applicant €20,000 in compensation for non-pecuniary damage.

ECHR decision in the case of «Yeloyev v. Ukraine»

The applicant complained of excessively long and unlawful detention, noting that the legality of his detention was not reviewed, and that the proceedings in his case were excessively lengthy. The applicant’s detention from the moment of his arrest until his conviction lasted 5 years and 5 months.

In paragraph 60 of the decision, the Court noted that although the applicant’s absconding for 1 year was sufficient reason for his detention, the severity of the charges and the risk of flight were the only grounds for not changing the preventive measure. The first court decision on the merits of the case was made only 2 years and 3 months after the applicant’s arrest. However, after a certain period, the mere existence of reasonable suspicion ceases to justify deprivation of liberty, and judicial authorities must provide other grounds for continued detention. Yet, no such grounds were provided by the court. Moreover, the possibility of alternative preventive measures was never considered.

Therefore, the ECHR concluded that after a certain period, even a reasonable suspicion of having committed a crime cannot be the sole justification for the continued detention of a suspect/accused, and the investigating judge/court, when granting a request for a preventive measure in the form of detention or its extension, must clearly state the presence of another ground or risk provided for in part 1 of Article 177 of the Criminal Procedure Code of Ukraine.

As a result, the ECHR found that in this case, there were violations of paragraphs 1, 3, 4 of Article 5, paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. No monetary compensation was awarded to the applicant, as he did not request any satisfaction.

ECHR decision in the case of «Nechiporuk and Yonkalo v. Ukraine»

The applicant claimed to be the victim of several violations, including torture (such as electric shocks and blows through a bulletproof vest), lack of effective investigation, violation of the right to defense and fair trial, and the right to guaranteed compensation for unlawful detention.

Notably, the national court found the applicant guilty of premeditated murder for gain by prior conspiracy, robbery with intent to seize property, and unlawful possession of weapons, sentencing him to 15 years of imprisonment.

In paragraphs 175 and 219 of the decision, the ECHR notes that the term “reasonable suspicion” refers to existing facts or information that can convince an objective observer that the person in question may have committed an offense. The purpose of detention for interrogation is to assist in the investigation by confirming or refuting the suspicions that led to the detention. Furthermore, in the absence of reasonable suspicion, a person cannot be detained or taken into custody to force them to confess to a crime, testify against others, or provide facts or information that may serve as grounds for reasonable suspicion.

The question of whether the length of detention is reasonable cannot be decided in the abstract. The presence of grounds for keeping an accused in custody must be assessed in each case, taking into account its specifics. Continued detention can be justified only by clear signs that a genuine public interest requires it, which, despite the presumption of innocence, outweighs the interest in ensuring the right to liberty. Continued reasonable suspicion that the detained person has committed a crime is a necessary and essential condition for the lawfulness of continued detention. However, over time, such suspicion alone ceases to justify deprivation of liberty, and judicial authorities must justify their decisions to continue detention on other grounds. These grounds must be clearly stated by national courts, and the arguments for and against release must not be “general and abstract.”

Thus, the ECHR concluded that suspicion must be based on reasoned and substantiated grounds and is a significant part of the guarantee against arbitrary detention and custody.

As a result, the ECHR found that in this case, there were violations of Article 3, paragraphs 1, 2, 3, 4, 5 of Article 5, paragraphs 1, 3 (c) of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and Ukraine was ordered to pay the applicant €35,000 in compensation for non-pecuniary damage and €13,594 in legal costs.

ECHR decision in the case of «Lutsenko v. Ukraine»

This case is notable primarily because the applicant was the former Minister of Internal Affairs, Prosecutor General of Ukraine, and the leader of one of the opposition parties. In his application to the ECHR, he complained, among other things, that his arrest and detention were arbitrary and unlawful, that he was not promptly informed of the grounds for his arrest, that the decision to detain him was unfounded, and that he was effectively punished for refusing to testify against himself. He also complained about not being provided with all the case materials, and that he and his lawyer were not given sufficient time and opportunities to prepare his defense.

In paragraphs 62, 63, 64, 90, and 109 of the judgment, the court noted that Article 5 of the Convention guarantees the fundamental right to liberty and security, which is crucial in a “democratic society.” Everyone has the right to protection of this right, meaning not to be deprived of liberty or to have guarantees against continued deprivation of liberty, except in the conditions set out in paragraph 1 of Article 5 of the Convention. This list of exceptions is exhaustive, and only a narrow interpretation of these exceptions corresponds to the purposes of this provision, namely to guarantee that no one is arbitrarily deprived of liberty. Any arbitrary detention cannot be compatible with paragraph 1 of Article 5 of the Convention. In this context, the term “arbitrariness” is understood more broadly than just non-compliance with national law. As a result, lawful deprivation of liberty under national law can still be arbitrary and thus violate the Convention, particularly when there has been bad faith or misleading by state authorities, or when such deprivation of liberty was not necessary in the specific circumstances.

The applicant was detained as part of another criminal case and brought to court the next day. However, the court did not address the legality of the applicant’s detention and did not intend to do so. The relevant facts also confirm that the prosecution authorities brought the applicant to court only to consider their request for his detention in the first criminal case and effectively opposed any consideration of the legality of the applicant’s detention during the court session. Such behavior by the national authorities indicates that the purpose of the applicant’s detention was not to bring him before a competent judicial authority in the same criminal case but to ensure his presence during the consideration of the request for a preventive measure of detention in another criminal proceeding.

Furthermore, the applicant’s detention does not appear to be “necessary to prevent the commission of an offense or fleeing after having done so.” Indeed, the ruling on the applicant’s preventive measure of detention listed among its grounds the prevention of his evasion from participation in the investigation and the continuation of his criminal activity. However, state authorities did not explain how exactly the applicant, who was accused of abuse of office, could continue this type of activity almost a year after he was dismissed from the position of Minister of Internal Affairs of Ukraine. As for the risk of flight, the applicant was under a recognizance not to leave, which he had given to the same investigator who arrested him and who apparently had no prior complaints regarding the applicant’s compliance with the recognizance.

The national court did not consider the possibility of applying another preventive measure other than detention, although the applicant’s lawyer filed a motion for bail. In addition to these shortcomings, the applicant was unjustifiably denied a request for sufficient time to review the case materials to prepare his defense. The court cannot accept the argument that the applicant did not need to familiarize himself with the materials supporting the prosecutor’s request since he was aware of the facts described in the request. It was the applicant and his lawyer, not the state authorities, who should decide whether they needed to familiarize themselves with the materials presented to justify the applicant’s detention. Such behavior by the national authorities seriously affected the principle of equality of arms.

Moreover, in the court’s opinion, the applicant’s deprivation of liberty was applied not only to bring him before a competent judicial authority on reasonable suspicion of having committed an offense but also for other reasons, with the aim of removing him from political life and preventing his participation in future parliamentary elections.

As a result of the proceedings, the ECHR ruled that in this case, there was a violation of paragraphs 1, 2, 3, and 4 of Article 5, and Article 18 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and that Ukraine should pay the applicant 15,000 euros in compensation for non-pecuniary damage.

ECHR decision in the case of «Gäfgen v. Germany»

At first glance, this case seems unrelated to Ukraine, but it had a fundamental impact on the formation of national court practice, and its ruling is a powerful tool for the defense side.

It was during its consideration that the ECHR first applied the “fruit of the poisonous tree” doctrine, previously developed by the U.S. Supreme Court, according to which if the source of evidence is improper, then all derivative evidence obtained with its help is also considered improper.

In its ruling, the ECHR noted the following regarding compliance with Article 6 of the Convention. German courts refused to exclude evidence obtained based on statements to which the applicant was coerced, and some of this evidence was used to confirm the truthfulness of the applicant’s confession.

The court concluded that the decision made in the applicant’s case was largely based on the same evidence obtained in violation of the applicant’s procedural rights, with serious allegations remaining unrefuted by the authorities that all confessions were obtained under duress, thus they constitute the “fruit of the poisonous tree.”

Thus, admissible evidence itself, obtained with the help of information from an inadmissible source, also becomes inadmissible.

A similar position is outlined in the ECHR’s ruling in the case of “Yaremenko v. Ukraine,” where the court stated that in the procedural formalization and securing of evidence by the pre-trial investigation body, the procedural order of obtaining and recording evidence was not followed, which in turn leads to the recognition of all derivative evidence as inadmissible.