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14.06.2022

Even in conditions of martial law, the maximum observance of human rights guaranteed by the Convention must be ensured – the head of the Department of the Armed Forces

Responding to the challenges that arose during martial law, the Verkhovna Rada of Ukraine made a number of changes to legislation, including the CPC of Ukraine. And today there is a question about how these changes will be implemented in practice. Taking this into account, the aspects regulated in the Criminal Code of Ukraine should be carefully applied by the criminal justice authorities. Whether there will be appropriate appeals to the European Court of Human Rights in the future will depend on their balanced application.

This was stated by the head of the department of analytical and legal work of the Supreme Court, Rasim Babanly , during the VIII (XXI) Lviv criminal justice forum " Ukrainian criminal justice in conditions of war ".

"The challenges that criminal justice and the entire legal system in general are trying to overcome are unprecedented. Ukraine has to be at the forefront of the issues facing the legal system in the conditions of martial law, as none of the European countries has faced such challenges," emphasized Rasim Babanly.

He spoke about the problems that arose in the judicial system after the full-scale Russian aggression. Thus, there was an urgent need to change the territorial jurisdiction of court cases of those courts that were in the zone of hostilities or occupation. According to the Law of Ukraine "On the Judiciary and the Status of Judges", the High Council of Justice has the right to change the jurisdiction, but it is not competent, as it was then and now.

According to the speaker, the Verkhovna Rada of Ukraine quickly responded to this challenge and empowered the Chairman of the Supreme Court to change the territorial jurisdiction of court cases. Later, amendments were made to the final and transitional provisions of the Laws of Ukraine "On the Judiciary and the Status of Judges" and "On the High Council of Justice", according to which the Chairman of the Supreme Council was granted some powers of the Supreme Court. "Not all the powers of the VRP, because some of the powers of the VRP are enshrined in the Constitution of Ukraine, and without making changes to it, it is impossible to transfer these powers to any official or any other body in a constitutional manner," Rasim Babanly emphasized.

According to the speaker, peacetime laws do not cover all issues that may be urgent in times of war, so the legal system must respond to the challenges it faces. He recalled that the Ministry of Justice of Ukraine reacted to the legislative changes and partially announced a temporary retreat by Ukraine from the obligations under the Convention on the Protection of Human Rights and Fundamental Freedoms, in accordance with the normative legal acts, which to a certain extent proportionally reduce the guarantees of the Convention.

"And such a reduction in guarantees is justified. At the same time, as the practice and experience of 2014-2015 shows, in the issue of proportionality of the limitation of conventional guarantees, their temporality is key. These issues are highlighted in the decisions of the ECtHR in the cases of July 25, 2017, "Khlebyk v. Ukraine" and February 11, 2021, "Kurochenko and Zolotukhin v. Ukraine," the head of the Supreme Court department said.

If in the decision in the case "Hlebik v. Ukraine", added the speaker, the ECtHR did not recognize the violation of Art. 5 of the Convention (the right to freedom and personal integrity), then in the decision in the case "Kurochenko and Zolotukhin v. Ukraine" under similar circumstances, a violation of this article was established. This issue is related to the restoration of lost materials of criminal proceedings.

"Today, amendments have been made to the Criminal Procedure Code of Ukraine and a special procedure is provided for restoring the materials of criminal proceedings at the pre-trial investigation stage. As for the court proceedings, unfortunately, issues remain unresolved, including those that existed from 2014-2015. The problem, in my opinion, is that, firstly, the criminal proceedings can be resumed only when there is a court decision. And secondly, the Criminal Procedure Code of Ukraine provides for the exact restoration of criminal proceedings materials. But it is clear that nowadays, in such conditions, it is practically very difficult to ensure an accurate, complete restoration of the materials of the criminal proceedings, compared to those that were lost," said Rasim Babanly.

Therefore, according to him, the problem identified in the decision of the ECtHR in the case "Kurochenko and Zolotukhin v. Ukraine" needs an urgent solution. With this in mind, it is necessary to look for opportunities to introduce legislative changes to resolve the issue of restoration of criminal proceedings materials.

As for issues related to the restriction of freedom and personal integrity, namely detention, the speaker noted that the Criminal Code of Ukraine (Article 615) currently provides for certain extraordinary possibilities: granting the head of the relevant prosecutor's office the authority to decide on the selection of pretrial detainees measures, their extension, as well as the automatic extension of a preventive measure in the form of detention for a period of up to two months in those cases when the court cannot consider the relevant issue.

"Today, all participants in the criminal justice system declare and profess the principle that, despite the state of war, Ukraine observes the human rights guaranteed by the Convention. Even in such conditions, maximum observance of these rights must be ensured. That is, it is one thing that the law gives the right to apply the relevant norms, and another is that this right is exercised in exceptional cases, and not because such a possibility formally exists," said Rasim Babanly.

At the end of the speech, the speaker expressed his belief that the answers to a large number of questions related to the application of the norms of both procedural and substantive law will be provided by judicial practice.

The event, which took place on June 9-11, 2022, was organized by the OSCE Project Coordinator in Ukraine, Lviv Criminal Justice Forum, State Bureau of Investigation, Lviv State University of Internal Affairs, JustTalk Platform.

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