Why is Ukraine losing cases in the European Court?

Submissions
regarding the execution of judgments of the European Court of Human Rights which have become
final

1. Violation of rights guaranteed by paragraph 1 of Article 6 (“Right to a fair trial”) of the Convention
1.1. Regarding the violation of the requirement to execute judgments of a national court within a reasonable time
Judgments in which the aforementioned violation was established: “Solomatin v. Ukraine”, “Storozhuk v. Ukraine”, “Rotar v. Ukraine”, “Kryvenko v. Ukraine”, “Komnatskyy v. Ukraine”, “Korniychuk v. Ukraine”, “Lazarenko v. Ukraine”, “Savinskyy and Shevchenko v. Ukraine”, “Skaloukhov v. Ukraine”, “Korabelnikov v. Ukraine”, “Skrypets v. Ukraine”, “Ivan Panchenko v. Ukraine”, “Karpukhan and Others v. Ukraine”, “Khrypko and Others v. Ukraine”, “Savula v. Ukraine”, “Ilchyshyn v. Ukraine”, “Lyudmyla Naumenko v. Ukraine”, “Vasylchuk v. Ukraine”, “Shastin and Shastina v. Ukraine”, “Kutsenko v. Ukraine”, “Yangolenko v. Ukraine”, “Serhieieva v. Ukraine”, “Shebanov v. Ukraine”, “Tamara Vasylivna Len and Hryhoriy Kuzmych Len v. Ukraine”, “Ramus and Others v. Ukraine”, “Logachova and Others v. Ukraine”, “Himadulina and Others v. Ukraine”, “Yuriy Mykolayovych Ivanov v. Ukraine” (pilot judgment).
The recognition of a violation of an individual’s right to the execution of a court judgment within a reasonable time, in most cases, also leads to the finding of a violation of Article 13 (“Right to an effective remedy”) of the Convention and Article 1 (“Protection of property”) of the First Protocol to the Convention, provided that the applicant has submitted a relevant complaint.
An analysis of the relevant judgments of the European Court in cases against Ukraine indicates that the violation of the rights of persons guaranteed by the specified provisions of the Convention and Article 1 of the First Protocol to the Convention in connection with the non-execution of court judgments within a reasonable time occurs, primarily, due to the effect of moratoria on the compulsory sale of property of debtors and the lack of funds in the state budget for the execution of judgments of national courts regarding compensation for damage caused by state representatives, and the collection of payments for which budget financing is guaranteed by legislation (for example, payments related to the performance of labour activities, as well as payments of various types of benefits and compensations — compensation for unused property of military personnel, benefits for persons who suffered as a result of the Chornobyl disaster, etc.).
In the context of the aforementioned violation, the judgment “Yuriy Mykolayovych Ivanov v. Ukraine”, which became final on 15 January 2010, deserves particular attention.
In this judgment, the European Court noted that the numerous violations in Ukraine of the provisions of the Convention in connection with the non-execution of national court judgments, for which the state is responsible, indicate the existence of a corresponding systemic problem in Ukraine. In this regard, the European Court obliged the state to introduce an effective legal remedy (a set of such remedies) which would ensure adequate and sufficient protection, in accordance with the principles established by the case-law of the European Court, against the non-execution or delay in the execution of national court judgments.
Ways of resolution
To execute the judgment in the case “Yuriy Mykolayovych Ivanov v. Ukraine” and all of the
above-mentioned judgments of the European Court, it is necessary to eliminate the grounds
leading to the non-execution of national court judgments and to introduce an effective mechanism
for their execution.
In this regard, the Ministry of Justice is developing a draft Law of Ukraine “On the execution of court judgments for which the state is responsible”, which will be submitted to the Cabinet of Ministers by the end of the year.
1.2. Regarding the violation of the requirement to conduct pre-trial investigation and trial within a reasonable time
Judgments in which the aforementioned violation was established:
“Polishchuk v. Ukraine”, “Tverdokhlebov v. Ukraine”, “Lazaruk v. Ukraine”, “Telehina v. Ukraine”, “Honcharov v. Ukraine”, “Osokin and Oskina v. Ukraine”, “Bendryt v. Ukraine”, “Shepeleva v. Ukraine”, “Nychytailov v. Ukraine”, “Chesnyak v. Ukraine”, “Nikiforenko v. Ukraine”, “Olena Ivanova v. Ukraine”, “Rostunova v. Ukraine”, “Prekrasnyy v. Ukraine”, “Mykolyn v. Ukraine”, “Hurynenko v. Ukraine”, “Khalak v. Ukraine”, “Udovik v. Ukraine”, “Malanchuk and Vavrynyuk v. Ukraine”, “Chubakova v. Ukraine”, “Shalimov v. Ukraine”, “Buhaynov v. Ukraine”, “Bilous v. Ukraine”, “Kostychev v. Ukraine”, “Shaposhnikov v. Ukraine”, “Shapoval v. Ukraine”, “Khurava v. Ukraine”, “Voyt v. Ukraine”, “Hutka v. Ukraine”, “Lopatin and Medvedsky v. Ukraine”, “Halat v. Ukraine”, “Mkrtchyan v. Ukraine”.
An analysis of the relevant judgments of the European Court indicates that the problems leading to the violation of the requirement to conduct pre-trial investigation and trial within a reasonable time pertain to the investigative practices of law enforcement agencies and judicial practice, and consist of:
the lack of diligence and thoroughness of investigative bodies when conducting criminal investigations;
the failure of the court to take measures to ensure the presence of participants in the court proceedings at hearings (witnesses, defendants, experts, etc.) and to ensure compliance with court orders by participants and other persons (for example, regarding the provision of documents);
the repeated return of a case for a new trial to a court of lower instance, as well as the return of a criminal case for additional investigation; the excessive duration of breaks between court hearings; the excessive duration of the consideration of appeals and cassation complaints; the excessive duration of judicial expert examinations and the court’s failure to take appropriate measures in this regard.
In the cases “Shalimov v. Ukraine” and “Nikiforenko v. Ukraine”, the European Court established a violation of Article 13 (“Right to an effective remedy”) of the Convention in connection with the lack of an effective remedy for the applicants against the violation of their rights to have their cases heard within a reasonable time.
Ways of resolution
To eliminate the violation of the “reasonable time” requirement for pre-trial investigation and trial by courts of general and specialised jurisdiction, it is necessary to improve the practice of investigative bodies and national courts in the context of the Convention’s requirements regarding reasonable time for proceedings and the relevant criteria applied by the European Court.
In the context of the measures taken by the state to eliminate the grounds for the aforementioned violation, it is also necessary to note that on 30 July 2010, the Law of Ukraine “On the Judicial System and the Status of Judges” came into force, which provides for strict time limits for the consideration of cases by courts, reduces the number of grounds for sending a case for a new trial to a court of first instance, and also provides for the disciplinary liability of judges for failure to take measures regarding the consideration of a case within the time limit established by law.

1.3. Regarding the violation of the individual’s right of access to a court

The aforementioned violation was established by the European Court in the judgment “Matsyuk v. Ukraine”.
In this case, the tax police refused the applicant compensation for material damage caused by the initiation of a criminal case, which was subsequently closed due to an amnesty act. The applicant was notified of the refusal of compensation by letter.
The applicant appealed to the Bila Tserkva City Court with a lawsuit against the tax police, demanding compensation for material and moral damage caused by the criminal case initiated against him. On 4 March 2002, the court rejected the applicant’s lawsuit. Refusing to consider the claim for material damage, the court indicated that, in accordance with Article 12 of the Law of Ukraine “On compensation for damage caused to citizens by illegal actions of inquiry, pre-trial investigation, prosecution and court bodies”, the amount of compensation for material damage must be established by a resolution of the relevant body of pre-trial investigation. By a letter dated 23 November 2001, the tax police informed the applicant of the refusal to provide compensation for material damage. In such a case, the applicant needed to challenge the refusal to provide compensation for damage itself.
On 26 March 2002, the applicant appealed to the court with a complaint against the tax police’s refusal to provide compensation for material damage.

On 21 November 2002, the Bila Tserkva City Court left the applicant’s complaint without consideration. The court reasoned its decision by stating that the tax police had not adopted any resolution in accordance with Article 12 of the Law of Ukraine “On compensation for damage”, and, accordingly, the consideration of this complaint did not fall under the court’s jurisdiction, since the aforementioned provision provides for “another procedure of appeal” — specifically by challenging the tax police’s resolution. Leaving the complaint without consideration, the court informed the applicant that he could appeal to the tax police “to settle the issue regarding the compensation for damage according to the provided procedure”. The Kyiv Regional Court of Appeal and the Supreme Court of Ukraine left the decision of the Bila Tserkva City Court of 21 November 2002 unchanged.
Thus, the national courts refused to consider the applicant’s complaint against the tax police’s refusal to provide compensation for material damage, referring to the fact that the applicant had to appeal to the tax police with a demand to provide him with a resolution on the determination of the amount of compensation for material damage, without taking into account that the tax police had already refused the applicant such compensation and it was this refusal that the applicant was challenging, as he had been clarified by the court’s decision of 4 March 2002.
Having examined the circumstances of the case, the European Court indicated that such an interpretation of the legislation by national courts lacked consistency, which led to the deprivation of the applicant’s right to challenge the tax police’s refusal to provide compensation for material damage through a clear and understandable procedure.

Furthermore, the aforementioned violation was established by the European Court in the judgment “Pelevin v. Ukraine”.
In April 2002, the Supreme Court of Ukraine, in response to an ordinary cassation complaint by the applicant against the judgments of the lower courts rendered in his criminal case, informed him of the refusal to review the case by way of exceptional proceedings.
Procedural decisions were not taken by the Supreme Court at that time. In June 2003, the Supreme Court of Ukraine initiated ordinary proceedings for the review of the applicant’s cassation complaint, which occurred after the European Court had forwarded the applicant’s complaint against the state for violating his right of access to a court to the Government Agent for the European Court of Human Rights. Having considered the complaint on the merits with the participation only of the prosecutor and the victim in the criminal case, the Supreme Court dismissed it.
Having assessed the circumstances of the case regarding the applicant’s complaint about the Supreme Court of Ukraine’s failure to ensure the review of his cassation complaint in the established order, the European Court concluded that the applicant’s right to access to a court and a fair trial had been violated.
1.4. Regarding the violation of an individual’s right to have their case heard by an impartial court.
The aforementioned violation was established by the European Court in the judgment “Myronenko and Martenko v. Ukraine”.
Having considered the criminal case on the charges of Mr T. and Mr K., Judge B. of the Darnytskyi District Court of Kyiv issued a ruling on returning the case for additional investigation, expressing the opinion that there were grounds in the case to hold the aforementioned defendants, together with the applicants, liable for committing a crime that had not been investigated by law enforcement agencies.
After the additional investigation was conducted, the case was returned to court with charges brought not only against the aforementioned defendants but also against the applicants for committing the crime mentioned in the aforementioned ruling. As a result of the trial, conducted solely by Judge B., the applicants were found guilty of committing the crimes with which they were charged. The applicants’ motions to recuse Judge B. on the grounds that this judge had already evaluated the actions of the applicants, as confirmed by the ruling on returning the case for additional investigation, and therefore could not be considered impartial, were rejected by the head of the relevant court as groundless. Neither the Court of Appeal nor the Supreme Court of Ukraine reviewed the applicants’ relevant complaints regarding the lack of impartiality of Judge B.
Having examined the circumstances of the case, the European Court concluded that the applicants’ right to have their case heard by an impartial court had been violated, as they were convicted as a result of a trial conducted solely by a judge who, prior to the consideration of the charges on the merits, had already expressed his opinion on the applicants’ guilt in committing the crimes, and furthermore, higher courts had left the applicants’ relevant complaints regarding the lack of impartiality in their trial without consideration.

Furthermore, the aforementioned violation was established by the European Court in the judgment “Feldman v. Ukraine”.
In November 2001, the Prosecutor General’s Office of Ukraine sent the case on the charges against the applicant for committing a number of crimes to the Supreme Court of Ukraine. The Deputy Chairman of the Supreme Court of Ukraine sent the case to the Luhansk Court of Appeal, which, in turn, sent it to the Artemivsk Local Court of the city of Luhansk for trial on the merits. The grounds for choosing such territorial jurisdiction in the case were not indicated by the courts. The Artemivsk Local Court of the city of Luhansk found the applicant guilty.
During the proceedings in the applicant’s case, the President of Ukraine and the Chairman of the State Tax Administration made public statements regarding the applicant’s commission of the crimes for which an investigation was ongoing.
Neither the Court of Appeal nor the Supreme Court of Ukraine reviewed the applicant’s complaints regarding the failure to ensure an impartial hearing of his case.
Having examined the applicant’s complaint, the European Court established that the absence of grounds for changing the territorial jurisdiction of the case, combined with the public statements of the President of Ukraine and the Chairman of the State Tax Administration regarding the applicant’s participation in the commission of the crimes for which an investigation was ongoing, indicated a violation of the applicant’s right to have his case heard by an impartial court.
Ways of resolution
To eliminate the violations indicated in sections 1.3 and 1.4, it is necessary to improve the practice of national courts in the context of the Convention’s requirements regarding the observance of an individual’s right of access to a court and a fair hearing by an impartial court, which is guaranteed by paragraph 1 of Article 6 of the Convention.
2. Violation of Article 2 of the Convention (“Right to life”)
The aforementioned violation was established in the judgments “Dudnyk v. Ukraine” and “Myronenko v. Ukraine”.
IN ACCORDANCE with the case-law of the European Court, the obligation to protect the right to life under Article 2 of the Convention indirectly requires the existence of an effective investigation when an individual has been deprived of life.
An analysis of the relevant judgments of the European Court indicates that the problems that led to the aforementioned violation are connected with the practice of investigative bodies, specifically: the lack of appropriate speed and diligence in establishing the cause of a person’s death, given that, with the passage of time, the chances of establishing the true cause of death decrease; the delay of investigative bodies in conducting urgent investigative actions, which leads to the loss of important evidence and reduces the likelihood that an effective investigation is possible at all;
the excessive duration of pre-trial investigation;
the failure of investigative bodies to follow the instructions of the court after a case is returned for additional investigation or for an additional check.
Ways of resolution
To eliminate the grounds for the aforementioned violation, it is necessary to improve the practice of investigating criminal cases initiated on the fact of the deprivation of an individual’s life in the context of the requirements of Article 2 of the Convention regarding the effectiveness of such an investigation.

3. Violation of Article 5 of the Convention (“Right to liberty and security”)
3.1. Violation of paragraphs 1, 4 and 5 of Article 5 of the Convention in connection with the application of the extradition procedure.
Judgments in which the aforementioned violation was established: “Koktysh v. Ukraine”, “Kreydich v. Ukraine”, “Dubovik v. Ukraine”, “Kabulov v. Ukraine”, “Puzan v. Ukraine”, “Shalimov v. Ukraine” and “Kamyshev v. Ukraine”, “Harkavyy v. Ukraine”.
An analysis of the relevant judgments of the European Court indicates that the problems that led to the aforementioned violation belonged to the legislative sphere. Thus, having examined the relevant complaints submitted by individuals against Ukraine, the European Court concluded that, at the time of the events complained of, neither the Code of Criminal Procedure of Ukraine nor any other legislative act contained legislative grounds for taking a person into custody for the purpose of extradition (the Code of Criminal Procedure of Ukraine, in force at the time of the events in the cases, provided that a preventive measure in the form of detention could be applied only to a suspect, accused, defendant or convicted person, and did not contain any rule regarding keeping a person in custody for the purpose of extradition), which led to a violation of the rights of individuals guaranteed by paragraph 1 of Article 5 of the Convention.
The absence of legislative regulation on the issue of keeping a person in custody for the purpose of extradition also made it impossible to initiate proceedings for a court to verify the lawfulness of detention “speedily” (paragraph 4 of Article 5 of the Convention) and to obtain appropriate compensation if the court found that such a measure was unlawful (paragraph 5 of Article 5 of the Convention).
Furthermore, in the judgment in the case “Baysakov and Others v. Ukraine”, the European Court established a violation of Article 13 (“Right to an effective remedy”) of the Convention in connection with the absence at the national level of effective remedies for individuals’ rights in extradition cases.
The European Court indicated that in extradition cases, Article 13 of the Convention requires: 1) an independent and thorough examination of a claim that there are substantial grounds for believing there is a real risk of treatment incompatible with the guarantees of Article 3 of the Convention in the event of the applicant’s expulsion to the destination country, and 2) the existence of such a remedy that automatically suspends the effect of the challenged extradition decision. At the time of the events in the case, no such remedy was provided for by national legislation.
Ways of resolution
On 17 June 2010, the Law of Ukraine “On amendments to the Code of Criminal Procedure of Ukraine regarding the surrender of an individual (extradition)” dated 20 May 2010 No. 2286-VI came into force. This Law ensures, through clear regulation of extradition procedures within the framework of criminal proceedings, the protection of the rights and interests of individuals for whom the issue of surrender is being decided.
Thus, at the legislative level, the grounds for the violations of the above-mentioned provisions of the Convention have been eliminated.

3.2 Regarding the violation of paragraph 1 (c) of Article 5 of the Convention.
Judgments in which the aforementioned violation was established: “Havazhuk v. Ukraine”, “Harkavyy v. Ukraine”, “Feldman v. Ukraine”, “Lopatin and Medvedsky v. Ukraine” and “Oleksiy Mykhailovych Zakharkin v. Ukraine”.
A violation of paragraph 1 (c) of Article 5 of the Convention in the aforementioned judgments was established by the European Court in connection with:
the absence of a defined period for which a preventive measure in the form of detention is chosen (or continued) by the court during the judicial investigation (starting from the preliminary hearing of the case); the use of administrative arrest in order to ensure the presence of a person who is, in essence, suspected of committing a crime at the disposal of investigative bodies to obtain grounds for the subsequent initiation of a criminal case against them. At the same time, the procedural rights of such a person as a suspect are not ensured, in particular, the right to a defence (conducting an interrogation regarding the criminal case in the absence of a defence lawyer) and the right not to testify against oneself: the absence of mandatory judicial control over a person’s detention during the period when the person is familiarising themselves with the case materials;
the absence of mandatory judicial control over a person’s detention from the moment the case is sent to court (when the pre-trial investigation has already finished) and until the preliminary hearing of the case is conducted (during which the issue of changing or choosing a preventive measure is decided). Accordingly, after the case is transferred to court and until the preliminary hearing of the case is conducted, the person’s detention is carried out in the absence of an appropriate substantiated court decision;
the extension of a person’s detention not by a judicial body, but by a prosecutor (in accordance with legislation in force before the “small” judicial reform (June 2001)).
Furthermore, in the judgment “Harkavyy v. Ukraine”, the European Court established a violation of Article 5 of the Convention in connection with the fact that the decision on the applicant’s conviction was based on the provisions of an international treaty that could not be applied to the applicant’s case.
Thus, the national court considered a request from the state authorities of the Czech Republic regarding the transfer of criminal proceedings in the applicant’s case under the European Convention on the Transfer of Proceedings in Criminal Matters as a request under the Convention on the Transfer of Sentenced Persons and its protocol, although no motions for this had been received and the provisions of this Convention and protocol could not be applied to the applicant’s case, since the Czech court’s decision to find him guilty had been issued in absentia.
An analysis of the relevant judgments of the European Court indicates that the causes underlying the aforementioned violation are linked both to national criminal procedural legislation and to the practice of national courts and investigative bodies.
Ways of resolution
To eliminate the grounds for the aforementioned violation, it is necessary to improve the practice of courts regarding the adoption of decisions on choosing (or continuing the application of) a preventive measure in the form of detention in the context of the relevant requirements of Article 5 of the Convention, and it is also necessary to introduce appropriate amendments to the Code of Criminal Procedure.

3.3. Regarding the violation of paragraph 2 of Article 5 of the Convention
In the judgment “Kabulov v. Ukraine”, a violation of paragraph 2 of Article 5 of the Convention was established by the European Court. Thus, the aforementioned provision requires that every person arrested be informed promptly, in a language which they understand, of the main legal and factual grounds for their arrest, which ensures the possibility for the person to apply — if they consider it necessary — to a court to challenge the lawfulness of the arrest. At the same time, the presence or absence of a violation of the “promptness” requirement is assessed in each case separately, based on the specific circumstances of the case.
In the case “Kabulov v. Ukraine”, the applicant claimed that he learned about the grounds for his arrest more than 20 days after the arrest. The relevant state authorities, referring to the arrest protocol, claimed that the applicant had been informed of the grounds on the day of his arrest.
The European Court concluded that there was a violation because the applicant’s arrest protocol did not contain the time and date of its signing by the applicant, and the relevant state authorities did not provide any other evidence that the applicant had been truly “promptly” informed of the grounds for his arrest.

3.4. Regarding the violation of paragraph 3 of Article 5 of the Convention
Judgments in which the aforementioned violation was established: “Myronenko and Martenko v. Ukraine”, “Shalimov v. Ukraine”, “Feldman v. Ukraine”, “Moskalenko v. Ukraine” and “Oleksiy Mykhailovych Zakharkin v. Ukraine”.
A violation of paragraph 3 of Article 5 of the Convention in the aforementioned judgments was acknowledged by the European Court in view of:
the absence of judicial review of the decision to arrest a person as a suspect;
the absence in court decisions regarding keeping a person in custody of substantiation of the applicability of the legally defined grounds for keeping a person in custody in the context of the real circumstances of a specific case. Thus, for example, the court often states as grounds for extending a person’s detention that, if released, the suspect (defendant) might evade the investigation and obstruct the establishment of the truth, without specifying which circumstances of the case led it to such a conclusion; the absence in decisions regarding the extension of a person’s detention of an analysis of the relevance of the risks that were the grounds for taking the person into custody at the beginning of the investigation. The European Court’s approach to reviewing the appropriateness of extending the periods of a person’s detention — both during pre-trial investigation and trial — is based on the presumption that with the effective investigation of the case, the risks that were the grounds for taking a person into custody at the initial stage of the investigation decrease. Accordingly, each subsequent decision to extend the period of detention must contain a detailed substantiation of the remaining risks and their analysis as grounds for further interference with the person’s right to liberty;
the absence in decisions regarding keeping a person in custody of an analysis of the possibility of applying other preventive measures to the person besides detention. Ways of resolution
To eliminate the grounds for the aforementioned violation, it is necessary to improve the practice of courts regarding the adoption of decisions on choosing (or continuing the application of) a preventive measure in the form of detention in the context of the relevant requirements of Article 5 of the Convention.

3.5 Regarding the violation of paragraphs 4 and 5 of Article 5 of the Convention
The aforementioned violation was established in the judgments “Feldman v. Ukraine” and “Myronenko and Martenko v. Ukraine”.
The reason for the finding of this violation is the absence of a court review “speedily” of the complaints of individuals regarding the lawfulness of their detention.
In the case “Myronenko and Martenko v. Ukraine”, the European Court established a violation of paragraph 4 of Article 5 of the Convention in connection with the fact that the applicants’ complaints regarding the lawfulness of their detention were considered by the court over more than two months. Furthermore, as a result of the consideration, the court did not render a decision on the merits of the complaints, but refused to consider them on the basis of Resolution of the Plenum of the Supreme Court of Ukraine No. 10 of 30 September 1999, the provisions of which do not have the force of law. The court’s leaving the applicants’ complaints regarding the lawfulness of their detention without consideration led to their inability to initiate proceedings to obtain compensation in the event that their detention were recognised as unlawful, which constitutes a violation of paragraph 5 of Article 5 of the Convention.
In the case “Feldman v. Ukraine”, the European Court established a violation in connection with the fact that the applicant’s demands regarding establishing the lawfulness of his detention were considered by the court over 10 to 60 days, which does not correspond to the requirement of paragraph 4 of Article 5 of the Convention regarding the consideration of relevant complaints by a court “speedily”, and the decision to release the applicant was not effectively executed in connection with the measures taken by the prosecutor’s office (detention in connection with another criminal case).

Ways of resolution
To eliminate the grounds for the aforementioned violation, it is necessary to improve the practice of courts regarding the consideration of applications from individuals kept in custody concerning the establishment of the lawfulness of their detention in the context of the requirement of paragraph 4 of Article 5 of the Convention regarding the consideration of such applications by a court “speedily”.

4. Violation of Article 3 of the Convention (“Prohibition of torture”)
4.1 Regarding the violation of Article 3 in connection with inadequate material and living conditions of persons held in pre-trial detention centres and correctional institutions, as well as the transportation of such persons.
The aforementioned violation was established in the judgments “Koktysh v. Ukraine”, “Visloguzov v. Ukraine”, “Davydov and Others v. Ukraine” and “Pokhlebin v. Ukraine”.
In the relevant judgments, the European Court has repeatedly noted that the state is under an obligation to ensure that the conditions of detention of a person in custody correspond to the principle of respect for human dignity.
An analysis of the European Court’s judgments indicates that the following leads to the aforementioned violation:
1) overcrowding of cells in pre-trial detention and correctional institutions;
2) the absence of a proper ventilation system and cell lighting system;
3) the absence of proper sanitary and hygienic conditions;
4) the absence of budget financing for the expenses necessary to ensure proper conditions for holding persons in pre-trial detention and correctional institutions;
5) the absence of proper conditions for transporting persons held in custody in pre-trial detention and correctional institutions.
In the judgments “Visloguzov v. Ukraine”, “Koktysh v. Ukraine” and “Davydov and Others v. Ukraine”, the European Court also established a violation of Article 13 (“Right to an effective remedy”) of the Convention.
In its judgments, the European Court has repeatedly noted that Article 13 of the Convention guarantees the existence at the national level of a remedy which must ensure compliance with the rights and freedoms provided for by the Convention, the possibility of the consideration of a relevant complaint by an authorised body on the merits, and also ensure judicial protection against the violation of the aforementioned rights and compensation for damage incurred in this connection.
The scope of obligations under Article 13 depends on the nature of the individual’s complaint, and in any case, the remedy guaranteed by this article must be effective in practice.
Based on the above-stated requirements of Article 13 of the Convention, the European Court concluded that there was no effective remedy in the state against violations of the rights of persons to proper conditions of detention in pre-trial detention and correctional institutions, in view of the fact that the aforementioned violation of Article 3 in Ukraine has a systemic nature and its elimination in this regard is not possible with the help of a complaint to the relevant state authorities.
Accordingly, the elimination of the grounds for the violation of Article 13 in this category of cases directly depends on the resolution of a complex of problems leading to the violation of Article 3 of the Convention in connection with the inadequate conditions for holding persons in pre-trial detention and correctional institutions.
Ways of resolution
On 16 February 2010, the Law of Ukraine “On amendments to the Criminal Executive Code of Ukraine regarding the ensuring of the rights of convicted persons in correctional institutions” came into force. This law provides, among other things, for an increase in living space in cells to 4 m² per person, which must be realistically ensured by 1 January 2012.
Also, for the purpose of humanising the conditions of restriction of liberty pending trial by a court and bringing them into compliance with the requirements of Recommendation No. Rec (2006)13 of the Committee of Ministers of the Council of Europe to member states “On the use of remand in custody, the conditions in which it takes place and the provision of safeguards against abuse”, the draft Law of Ukraine “On amendments to some legislative acts of Ukraine regarding the humanisation of remand in custody” was developed. In the near future, the draft law will be sent to the Cabinet of Ministers of Ukraine.
For the purpose of improving the conditions of detention in custody, the Cabinet of Ministers of Ukraine approved the Concept of the state targeted programme for reforming the State Penitentiary Service for the period until 2017. The aforementioned concept aims at the further improvement of the activities of the State Penitentiary Service by, in particular, improving the material and technical base of correctional institutions and pre-trial detention centres. The implementation of this programme will ensure the bringing of detention conditions into compliance with the requirements of the European Prison Rules and protection against human rights violations.
Furthermore, for the purpose of eliminating the grounds for the aforementioned violation, the Ministry of Justice systematically draws the attention of the State Department for the Execution of Punishments and the Ministry of Internal Affairs to the essence of the violations established by the European Court in connection with inadequate conditions of holding persons in the relevant institutions, and the urgent need to take measures for the elimination of the causes of this violation.

4.2 Regarding the violation of Article 3 of the Convention in connection with the failure to provide persons held in pre-trial detention and correctional institutions with adequate medical assistance.
The aforementioned violation was established in the judgments: “Visloguzov v. Ukraine”, “Pokhlebin v. Ukraine” and “Davydov and Others v. Ukraine”.
The European Court has repeatedly noted that Article 3 of the Convention imposes on the state the obligation to care for the health of persons who are held in custody and, accordingly, are under the control of the state. When the state decides to place and keep a seriously ill person in custody, it must ensure conditions that meet the special needs of this person. The mere fact of an examination by a doctor is insufficient. In case of need and depending on the nature of the illness, the state must ensure systematic and comprehensive supervision, which includes a comprehensive plan of measures for providing medical assistance, which must be aimed not at eliminating symptoms, but at the treatment of the illnesses of such persons and the prevention of the deterioration of their health.
An analysis of the relevant judgments of the European Court indicates that the following leads to the aforementioned violation:
the lack of proper response from employees of the relevant institutions to the complaints of this category of persons regarding the deterioration of their health and/or the appearance of bodily injuries;
taking measures for the elimination of the symptoms of an illness without ensuring the treatment of the illness itself;
the failure to provide adequate medical assistance to persons held in the relevant institutions who suffer from tuberculosis, HIV/AIDS and oncological diseases.
In the cases “Visloguzov v. Ukraine” and “Davydov and Others v. Ukraine”, the European Court also established a violation of Article 13 (“Right to an effective remedy”) of the Convention. In this category of cases, the European Court also applied the position regarding the absence of an effective remedy against the violation of rights guaranteed by the Convention, in the event that such a violation has a systemic nature and its elimination in this regard is impossible with the help of a complaint to the relevant state authorities.
Accordingly, the elimination of the grounds for the violation of Article 13 in this category of cases directly depends on the resolution of a complex of problems leading to the violation of Article 3 of the Convention in connection with the failure to provide persons held in pre-trial detention and correctional institutions with proper medical assistance.
Ways of resolution
As has already been noted, the Ministry of Justice is developing a draft resolution of the Cabinet of Ministers “On the approval of the State targeted programme for reforming the State Penitentiary Service for the period until 2017”, which, in particular, provides for the creation of specialised departments for providing medical assistance to persons ill with active tuberculosis at pre-trial detention centres.
Regarding administrative practice, it is noted that for the purpose of eliminating the grounds for the aforementioned violation, the Ministry of Justice systematically draws the attention of the State Department for the Execution of Punishments and the Ministry of Internal Affairs to the essence of the violations established by the European Court in connection with the failure to provide adequate medical assistance to persons held in pre-trial detention and correctional institutions, and the necessity to take action for the prevention of such a violation.

4.3. Regarding the violation of Article 3 of the Convention in connection with ill-treatment of persons held in pre-trial detention and correctional institutions by state representatives and the absence of an effective investigation into complaints of such treatment.
The aforementioned violation was established in the judgments: “Lotarev v. Ukraine”, “Lopatin and Medvedsky v. Ukraine”, “Oleksiy Mykhailovych Zakharkin v. Ukraine”, “Davydov and Others v. Ukraine”, “Okhrimenko v. Ukraine”.
In accordance with the established practice of the European Court, in the event of an individual submitting a complaint regarding ill-treatment by state representatives, the European Court examines the complaint in the light of the substantive and procedural aspects of Article 3 of the Convention.
Thus, Article 3 of the Convention in its substantive aspect prohibits the application to an individual of torture or inhuman or degrading treatment or punishment. Ill-treatment which falls under the effect of this article can consist of beating, the application of other measures of physical force, the round-the-clock use of handcuffs on a person held in custody during their stay in a hospital due to the state of their health, as was the case in the judgment in the case “Okhrimenko v. Ukraine”, etc.
Regarding the procedural aspect of Article 3 of the Convention, in its judgments regarding Ukraine, the European Court has repeatedly pointed to the absence of an effective investigation into the complaints of persons held in pre-trial detention and correctional institutions regarding ill-treatment by employees of law enforcement agencies or penitentiary institutions. The European Court has repeatedly established that in the absence of an official and effective investigation, the general legislative prohibition of torture and corporal punishment and inhuman or degrading treatment is ineffective.
The investigation of such complaints must lead to the identification and punishment of the guilty. In order for the investigation of the facts of ill-treatment by state representatives to be considered effective, as a rule, it is necessary that the persons responsible for the investigation, as well as the persons conducting the investigation, be independent of the persons who participated in the events regarding which this investigation is being conducted. This means the absence of any hierarchical or institutional connection and practical independence.
In the aforementioned cases, the violation of the substantive aspect of Article 3 of the Convention was caused by the unjustified application to persons held in pre-trial detention and correctional institutions of measures of physical force (beating) and special means, for example, the round-the-clock use of handcuffs (judgment in the case “Okhrimenko v. Ukraine”).
The violation of the procedural aspect of Article 3 was caused by the ineffectiveness of the investigation into the complaints of persons regarding ill-treatment, which was manifested, in particular, in:
the failure to ensure the impartiality of the review of the complaints of persons regarding ill-treatment, in particular in connection with the legally entrenched right of correctional institutions and pre-trial detention centres to conduct inquiries into cases of crimes committed within the location of the aforementioned institutions (Article 101 of the Code of Criminal Procedure of Ukraine); the failure to ensure the impartiality of prosecutors who carry out the verification of the complaints of persons regarding the ill-treatment of persons in places of pre-trial detention and correctional institutions;
the repeated cancellation by national courts and prosecutor’s offices of resolutions on the refusal to initiate a criminal case, issued by internal affairs bodies and prosecutor’s offices of a lower level based on the results of the verification of the complaints of persons regarding ill-treatment by state representatives;
delays in taking the necessary measures at the initial stage of the verification of the relevant complaints, which significantly reduces the level of likelihood that the investigation into the complaint can be effective.
Accordingly, the problems that lead to the aforementioned violation belong both to the sphere of administrative practice and to the legislative sphere.
Ways of resolution
Regarding administrative practice, it is necessary to note that for the purpose of eliminating the grounds for the aforementioned violation, the Ministry of Justice systematically draws the attention of the State Department for the Execution of Punishments, the Ministry of Internal Affairs, the Prosecutor General’s Office, and the Security Service of Ukraine to the inadmissibility of the unjustified application to persons who are in pre-trial detention or correctional institutions of measures of physical force and special means.
Furthermore, it is necessary to improve the practice of conducting investigations into the complaints of persons regarding ill-treatment by state representatives in the context of the requirements of Article 3 of the Convention.
Regarding the legislative sphere, it is necessary to note that for the purpose of eliminating the grounds for the aforementioned violation, it is necessary to introduce amendments to the Code of Criminal Procedure to reduce the circle of subjects of authority who can conduct inquiries.

5. Violation of Article 8 of the Convention (“Right to respect for private and family life”)
In its judgments, the European Court has repeatedly noted that any interference by state authorities in the right to respect for private and family life will contradict Article 8 of the Convention if it is not carried out “in accordance with the law”, does not have one or several legitimate aims mentioned in paragraph 2 of Article 8 of the Convention, and if it is not “necessary in a democratic society” for the achievement of such aims.
5.1. Regarding the violation of the right to respect for correspondence
The aforementioned violation was established in the judgments: “Hlinov v. Ukraine”, “Mykhailyuk and Petrov v. Ukraine”, “Visloguzov v. Ukraine” and “Davydov and Others v. Ukraine”.
An analysis of the relevant judgments of the European Court indicates that the problems that led to the aforementioned violation belong to the sphere of administrative practice and consist of:
unjustified seizure and review of correspondence addressed to the aforementioned persons, or sent by them to state authorities, defence lawyers or to the European Court. Examining the relevant complaints, the European Court, in particular, draws special attention to the practice of sending the letters of convicted or imprisoned persons to the European Court with a cover letter, which is direct evidence of the review of their correspondence by the institution’s administration;
the review by bodies of the penitentiary system of the correspondence of persons who are employees of correctional institutions and live in premises located on the territory of the correctional institution.
Ways of resolution
For the purpose of eliminating the grounds for the aforementioned violation, the Ministry of Justice systematically draws the attention of the State Department for the Execution of Punishments to the inadmissibility of reviewing and seizing the correspondence of persons who are held in correctional institutions, or are employees of such institutions and reside on their territory.

5.2 Regarding the violation of the right of a person held in custody to visits with relatives
In the case “Shalimov v. Ukraine”, the European Court established a violation of Articles 8 and 13 of the Convention in connection with the fact that national legislation, by establishing the powers of the investigator and judge regarding the resolution of the issue of granting permission to a person held in custody for visits with relatives, does not contain a clear procedure for resolving this issue and an obligation for the aforementioned officials to substantiate the relevant decisions. The absence of clear regulation of the procedure for considering the relevant applications of persons makes it impossible to challenge them and, accordingly, to protect the person’s right to visits with relatives.
Ways of resolution
The elimination of the grounds for the aforementioned violations is possible through the introduction of appropriate amendments to the Code of Criminal Procedure of Ukraine.

5.3 Regarding the right of an individual to respect for family life
In the case “Kurochkin v. Ukraine”, the European Court established the existence of a violation of Article 8 of the Convention in connection with the fact that the decisions of national courts on the cancellation of the adoption of a child by the applicant were not based on grounds that would justify interference with the applicant’s right, guaranteed by the aforementioned article of the Convention.
An analysis of the aforementioned judgment of the European Court indicates that shortcomings in judicial practice led to the aforementioned violation.
Ways of resolution
For the purpose of eliminating the grounds for the violation established in this case, it is necessary to improve the practice of courts in the context of the requirements of Article 8 of the Convention.

6. Violation of Article 34 of the Convention (“Right to apply to the European Court”)
The aforementioned violation took place in the judgments: “Chaykovskyy v. Ukraine”, “Kabulov v. Ukraine”, “Visloguzov v. Ukraine” and “Davydov and Others v. Ukraine”.
The European Court in its judgments has repeatedly emphasised that the obligation not to hinder the effective exercise of the right to apply to the European Court requires not allowing interference with an individual’s right to effectively submit and support their complaint to the European Court. In this context, the European Court emphasised that persons held in conditions of lack of freedom are in a particularly vulnerable position, since their correspondence with the European Court and with the rest of the outside world depends on the administration of the relevant institutions.
An analysis of the relevant judgments of the European Court indicates that the problems that led to the aforementioned violation belong to the sphere of administrative practice and consist of the unjustified seizure or review by the administration of the relevant institutions of correspondence sent to the European Court or received from it by persons held in correctional institutions, which led to the limitation of their right to submit a complaint to this international judicial body and to support it in the process of consideration.
Ways of resolution
For the purpose of eliminating the grounds for the aforementioned violation, the Ministry of Justice systematically draws the attention of the State Department for the Execution of Punishments to the inadmissibility of reviewing and seizing correspondence sent to the European Court or received from it by persons held in correctional institutions.

7. Violation of Article 2 (“Freedom of movement”) of Protocol No. 4 to the Convention
A violation of the aforementioned provision was established by the European Court in the judgment in the case “Nikiforenko v. Ukraine” in connection with the excessive duration of the application to the applicant of a preventive measure in the form of an undertaking not to leave. The applicant was charged with committing the theft of a bicycle by trespassing into a dwelling. The case was repeatedly returned by the court for additional investigation, and the proceedings lasted over 10 years.
In accordance with the practice of the European Court, interference with an individual’s right to freedom of movement does not constitute a violation if it is provided for by law, has a legitimate aim and is necessary in a democratic society. The assessment of “necessity in a democratic society” involves establishing whether such challenged interference was “proportionate to the legitimate aim pursued”.
In this case, the European Court noted that the application of a preventive measure in the form of an undertaking not to leave is an interference with an individual’s freedom of movement, and it was carried out in accordance with the law and met a legitimate aim. However, the duration of the application of this preventive measure to the applicant, which amounted to more than 10 years, indicates the disproportionality of such interference. The European Court also took into account that such long-term interference with the applicant’s right was carried out in the context of charges for a rather minor crime.
Thus, the European Court reached the conclusion that a “fair balance” between general interests and the applicant’s right to freedom of movement had been violated, and, accordingly, there was a violation of Article 2 of Protocol No. 4 to the Convention.
An analysis of the aforementioned judgment of the European Court indicates that the problem that leads to the aforementioned violation belongs to the sphere of administrative practice and consists of the unreasonably long application to an individual of a preventive measure in the form of an undertaking not to leave.
Ways of resolution
For the purpose of eliminating the grounds for the aforementioned violation, it is necessary to improve the practice of investigating cases in the context of the requirements of Article 2 of Protocol No. 4 regarding the observance of a fair balance between public interests regarding the investigation of crimes and the right of individuals to freedom of movement.