Supreme Court not bothered about European Court of Human Rights judgments

It is difficult to avoid such a conclusion after visiting a hearing on the criminal case involving Oleksandr Yaremenko.
In June 2008 the European Court of Human Rights found that Ukraine had violated Article 3 of the Convention on account of the failure of the authorities to conduct an effective investigation into the applicant’s allegations that he was ill-treated by the police and prosecutors.
This would normally serve as grounds for quashing the sentence and ordering a new examination – however not in Ukraine.

Despite a number of significant violations, including manipulation of the classification of the crime, violation of the right to not incriminate oneself, and the obtaining of a confession under circumstances which have not been clarified, the Supreme Court took the side of the prosecution.

Prosecutor General’s Office Representative Mr Kudryavtsev asked the Court to simply remove reference to evidence obtained unlawfully from the motivation part of the ruling, and not change the sentence. This is despite the fact that the confession was effectively the key piece of evidence in the case, “not supported by any other material”, the European Court ascertained.

With regard to other proof, the Prosecutor stated that the convicted man’s accomplice “had given a detailed account about the crime committed with Yaremenko’s participation”. However the European Court of Human Rights stated with respect to this that: “the Court finds it remarkable that the applicant and Mr S, over two years later, gave very detailed testimonies which according to investigator contained no discrepancies or inconsistencies. This degree of consistency between the testimonies of the applicant and his co-accused raise suspicions that their accounts had been carefully coordinated. The domestic courts however considered such detailed testimonies as undeniable proof of their veracity and made them the basis for the applicant’s conviction for the 1998 crime despite the fact that his testimony had been given in the absence of a lawyer, had been retracted immediately after the applicant was granted access to the lawyer of his choice, and had not been supported by other materials. In those circumstances, there are serious reasons to suggest that the statement signed by the applicant was obtained in defiance of the applicant’s will.”

Yet the Supreme Court does not find the evidence to be remarkable and therefore found the Prosecutor’s request quite acceptable. The main evidence was removed however the actual sentence was left unchanged.

According to Arkady Bushchenko, Yaremenko’s lawyer and Head of the Board of the Ukrainian Helsinki Human Rights Union, the judgment passed by the Supreme Court is not in implementation of the European Court of Human Rights Judgment. The latter, after all, views the evidence which was today “removed” to be a significant part of the verdict, and without it the latter cannot be passed down. To throw out significant evidence and still uphold the verdict means that you are saying that you can pass any verdicts evident without any evidence.

The Supreme Court did not avail itself of the opportunity to show itself as a body which forms the judicial policy in the country. There were a number of important things in the European Court Judgment which could help the Ukrainian justice system enable courts to exclude unacceptable evidence. The Supreme Court had the chance to become a stimulus for legal development, but failed to take it.

The Supreme Court Judgment could be seen as a signal by police bodies – do as you’ve always done. Get your evidence through unlawful methods of investigation. We may through them out of the verdict, but we’ll keep them in mind.

The results of this case would seem to suggest that our legal system does not take heed of European Court of Human Rights judgments. You may win your case there, but you’ll have to sit out your sentence passed in violation of fundamental principles of a fair trial.

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