Supreme Court reboot on Shabelnik Case

On 11 July 2002 Dmitriy Shabelnik was sentenced to life imprisonment by the Zhytomyr Court of Appeal, with this sentence being upheld in October of that year by the Supreme Court. On 19 February 2009 the European Court of Human Rights found that Ukraine had violated Mr Shabelnik’s right to a fair trial.  The latter, represented by Arkady Bushchenko, had complained under Article 6 §§ 1 and 3 of the Convention that his conviction for murder had been based on incriminating evidence obtained in violation of his right to remain silent and the privilege against self-incrimination and that he had been hindered in the effective exercise of his right to defence when questioned at the pre-trial stage of the proceedings.

On 30 April 2010 there was a joint session of the Criminal Proceedings Chamber and the Military Chamber of the Supreme Court to consider Arkady Bushchenko’s application for a re-examination of the court rulings due to exceptional circumstances. The meeting was attended by Arkady Bushchenko, Deputy Prosecutor General Viktor Kudryavtsev and was presided over by the First Deputy Head of the Supreme Court Petro Pylypchuk.

During the hearing it transpired that an application had also been received from the Zhytomyr Regional Prosecutor for a re-examination of the court rulings.

One can, of course, question the participation of a member of the Higher Council of Justice who has certain disciplinary power over judges from the point of view of independence and impartiality of courts examining a case. One can also feel surprise that the Supreme Court failed to informed Mr Shabelnik’s lawyer of the involvement of the Zhytomyr Regional Prosecutor.  However all this is of secondary importance in the light of the Supreme Court’s ruling.

Both parties referred to the European Court judgment and agreed that Mr Shabelnik’s testimony, obtained in violation of his right to remain silent and to legal defence, could not be used. The only difference in opinion was on what the outcome should be of a review due to exceptional circumstances.

The Zhytomyr Regional Prosecutor, supported by the Deputy Prosecutor General, proposed following the same line as that taken in the Supreme Court ruling on the case of Yaremenko from 31 July 2009.  As reported, then the Supreme Court agreed to simply exclude from the court rulings references to testimony which the European Court had seriously questioned. The Prosecutor claimed that there was sufficient evidence to convict Shabelnik without the latter’s confession.

Mr Shabelnik’s lawyer protested that the Prosecutor was encouraging the Supreme Court to yet again go beyond its powers and to assess evidence which is within the jurisdiction only of a first instance court or, under certain circumstances, a court of appeal. He called on the Supreme Court to act within its competence, revoke the court rulings on the case and send it back to a first instance court.  As a result, the Supreme Court revoked the Supreme Court judgment from 11 October 2002 and sent the case for a new cassation examination.

One can only welcome this decision by the Supreme Court which, after a false start in the Yaremenko case has reassessed its views on proceedings in the light of new circumstances and has stayed within the boundaries of its powers, enforcing the judgment from the European Court of Human Rights. It should be borne in mind that examination by the Supreme Court in this category of case is effectively examination at appeal level, during which the parties may present and dispute evidence. This will provide Dmitriy Shabelnik with a real chance for a fair examination of his case.

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