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e-ISSN: 1647-7251

Vol. 14, Nº. 2 (November 2023-April 2024)

302

PROBLEMS AND CONFLICTS RELATED TO MEASURES TO ENSURE THE RIGHT

TO A FAIR TRIAL IN ACCORDANCE WITH THE EUROPEAN CONVENTION ON

HUMAN RIGHTS

GANNA SOBKO

sobko8170@edu-knu.com

Professor of the Department of Criminal Law and Criminology of Odesa State University of

Internal Affairs (Ukraine); special rank - Police Major.

HALYNA MULIAR

muliar@acu-edu.cc

Doctor of Law, Associate Professor, Professor of the Department of Criminal Law, Procedure and

Criminalistics of the Academy of Labor, Social Relations and Tourism (Ukraine). She is the author

of more than 80 scientific papers. She is the author of eight monographs.

MYROSLAV HRYHORCHUK

hryhorchuk8223@sci-univ.com

By the decision of the Specialized Academic Council of the National Academy of Internal Affairs of

the Ministry of Internal Affairs of Ukraine (Ukraine), the scientific degree of Candidate of Legal

Sciences was awarded with a specialization in administrative law and process, financial law,

information law. As a consultant to the Committee of the Verkhovna Rada of Ukraine on National

Security and Defense, he participated in the preparation of a number of draft laws of Ukraine. He

is the author of more than sixty scientific works on the topics of ensuring Ukraine's foreign

economic and economic security, as well as protecting the rights of business entities. He has

published his scientific achievements in the publications of the Verkhovna Rada of Ukraine, the

NSDC of Ukraine, professional journals of the National Academy of Sciences of Ukraine, higher

educational institutions, and abroad.

OLEKSANDR HOLOVKO

oholovko@karazin.ua

Doctor of Law, Professor, Vice-Rector for Scientific and Pedagogical Work of V. N. Karazin Kharkiv

National University (Ukraine). Honored Lawyer of Ukraine, awarded the Order of Merit, III

degree. His research interests include history of law and state of Ukraine, historiosophy of law.

He is the author of more than 180 printed works in the field of history of law, history of doctrines

of law and state, theory of law, published in domestic and foreign editions, including scientific,

educational and methodological works, manuals, textbooks, monographs

IVAN DRALIUK

draliuk8223@neu.com.de

Ukrainian military officer (Ukraine), Major General, PhD in Law, former Deputy Chief of the SBU

for Combating Corruption (SBU Main Department for Combating Corruption).

IELYZAVETA LVOVA

lvova8223@edu.cn.ua

Professor at Odessa State University of Internal Affairs (Ukraine). She has worked as an

Associate professor at Odessa Regional Institute of Public Administration of National Academy of

Public Administration, Office for the President of Ukraine (2010-2020). Ielyzaveta holds titles of

Dr. habil and Prof.Dr. (with main focus on international constitutional law).

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 14, Nº. 2 (November 2023-April 2024), pp. 302-321

Problems and conflicts related to measures to ensure the right to a fair trial in accordance

with the European Convention on Human Rights

Ganna Sobko; Halyna Muliar; Myroslav Hryhorchuk; Oleksandr Holovko; Ivan Draliuk;

Ielyzaveta Lvova

303

Abstract

Notwithstanding the law governing the dispute, everyone has the right to a fair and impartial

trial, as stated in the first paragraph of Article 6 of the European Convention on Human Rights.

This provision emphasises an impartial trial within a reasonable time without taking into

account the civil, administrative, criminal nature of the case. Because the court`s decision is

announced publicly, the press and the public may not be allowed into the courtroom in order

not to harm the interests of justice. This process is implemented in the interests of a

democratic society, namely public order, national security and morality. The purpose of the

article is an analysis of problems and conflicts in the field of criminal and constitutional law

related to measures to ensure the right to a fair trial in the light of the European Convention

on Human Rights, including the analyses of the cases in the ECtHR related to Article 6 of the

European Convention on Human Rights and the consideration of the problems faced by the

two sides of the lawsuit. The main research methods are analysis and synthesis, comparative

and formal legal methods, using of which ensured an analysis of the legal framework of

national and international law, doctrinal approaches and practise of the ECtHR in the context

of the problems, conflicts and counteractions encountered in ensuring the right to a fair trial.

The conclusions point to conflicts in such cases, and provide theoretical advice on how to

improve them.

Keywords

Fair trial, European Court of Human Rights, protection of human rights, human freedom

Resumo

Independentemente da lei que rege o litígio, todas as pessoas têm direito a um julgamento

justo e imparcial, tal como previsto no primeiro parágrafo do artigo 6º da Convenção Europeia

dos Direitos do Homem. Esta disposição sublinha a necessidade de um julgamento imparcial

num prazo razoável, sem ter em conta a natureza civil, administrativa ou penal do processo.

Uma vez que a decisão do tribunal é anunciada publicamente, a imprensa e o público não

podem ser autorizados a entrar na sala de audiências, a fim de não prejudicar os interesses

da justiça. Este processo é implementado no interesse de uma sociedade democrática,

nomeadamente a ordem pública, a segurança nacional e a moralidade. O objetivo do artigo é

analisar os problemas e conflitos no domínio do direito penal e constitucional relacionados

com as medidas destinadas a garantir o direito a um processo equitativo à luz da Convenção

Europeia dos Direitos do Homem, incluindo a análise dos processos no TEDH relacionados com

o artigo 6. Os principais métodos de investigação são a análise e a síntese, os métodos

jurídicos comparativos e formais, que permitiram analisar o quadro jurídico do direito nacional

e internacional, as abordagens doutrinais e a prática do TEDH no contexto dos problemas,

conflitos e contra-acções encontrados na garantia do direito a um processo equitativo. As

conclusões apontam para os conflitos existentes nestes casos e fornecem conselhos teóricos

sobre a forma de os melhorar.

Palavras chave

Julgamento justo, Tribunal Europeu dos Direitos do Homem, proteção dos direitos humanos,

liberdade humana.

How to cite this article

Sobko, Ganna et al (2023). Problems and conflicts related to measures to ensure the right to a fair

trial in accordance with the European Convention on Human Rights. Janus.net, e-journal of

international relations, Vol14 N2, November 2023-April 2024. Consulted [online] in date of last

view, https://doi.org/10.26619/1647-7251.14.2.14

Article received on February 7, 2023 and accepted on March 24, 2023

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 14, Nº. 2 (November 2023-April 2024), pp. 302-321

Problems and conflicts related to measures to ensure the right to a fair trial in accordance

with the European Convention on Human Rights

Ganna Sobko; Halyna Muliar; Myroslav Hryhorchuk; Oleksandr Holovko; Ivan Draliuk;

Ielyzaveta Lvova

304

PROBLEMS AND CONFLICTS RELATED TO MEASURES TO ENSURE

THE RIGHT TO A FAIR TRIAL IN ACCORDANCE WITH THE

EUROPEAN CONVENTION ON HUMAN RIGHTS

GANNA SOBKO

HALYNA MULIAR

MYROSLAV HRYHORCHUK

OLEKSANDR HOLOVKO

IVAN DRALIUK

IELYZAVETA LVOVA

Introduction

The main guideline for the development of the domestic legal system is proclaimed that

the highest priority is the human person, his rights and freedoms, which are embodied

in Art. 3 of the Constitution of Ukraine. Thus, Art. 59 of the Constitution enshrined the

right to legal aid for every citizen of Ukraine, both free and paid. This right is proclaimed

in paragraphs. "C" Article 6. Convention for the Protection of Human Rights and

Fundamental Freedoms, which was adopted by the Council of Europe on April 11, 1950

and ratified by the Law of Ukraine No. 475/97VR of July 17, 1997, and recognised as the

right to legal aid, is guarantee

Despite the fact that every day we hear from all sources of telecommunications and

Internet resources about the overthrow of judicial reform, at the same time, there is a

decriminalisation of articles that directly hold judges accountable for wrongful

sentencing

Thus, on June 11, 2020, case No. 7-r /2020 which was initiated at the request of 55

people's deputies of Ukraine, on the constitutionality of Article 375 of the Criminal Code

M. G. Haustova. “Implementation of European legal standards in the legal system of Ukraine”. Legal

scientific electronic journal no. 6 (2016): 34-36. http://lsej.org.ua/6_2016/8.pdf (accessed March 22,

2023).

European Convention on Human Rights, 1950.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 14, Nº. 2 (November 2023-April 2024), pp. 302-321

Problems and conflicts related to measures to ensure the right to a fair trial in accordance

with the European Convention on Human Rights

Ganna Sobko; Halyna Muliar; Myroslav Hryhorchuk; Oleksandr Holovko; Ivan Draliuk;

Ielyzaveta Lvova

305

of Ukraine, was decided by the Decision of the Constitutional Court of Ukraine that it does

not comply with the Constitution of Ukraine.

The reason for the exclusion was the position that Ukraine is a democratic state where

the main requirement for legislation is that the norms (laws) must meet the principles

and criteria set out in the Constitution of Ukraine, namely the principle of the rule of law.

While the wording of Art. 375 of the Criminal Code came to us from Soviet times, where

the word (combination of words) "knowingly unjust" is taken from Art. 176 of the Criminal

Code of the UCPC of 1960, in the norm of which the responsibility was specified, if for

selfish motives or other personal interests the judges passed a "knowingly unjust"

sentence, decision, ruling, or resolution. In the opinion of the Constitutional Court, these

features are inherent in the policy of the Soviet Union and, accordingly, the Constitution

of the Soviet Union, while completely contradicting the Constitution of Ukraine and not

reflecting the system of principles and values enshrined in the current Constitution.

Examining the historical context of the legal practise of the Soviet Union, it can be argued

that Art. 375 of the Criminal Code of Ukraine is a failed imitation.

Arguing the recognition of Art. 375 of the Criminal Code of Ukraine, the Constitutional

Court of Ukraine proceeds from the fact that in Art. 375 of the Criminal Code quite a

large number of evaluative concepts do not establish criteria, which the legislator

understands as "unjust". Accordingly, it is not clear which "knowingly unjust" actions can

be considered as such: a decision, ruling, sentence, or ruling of a judge (judges), which

may lead to an ambiguous understanding of the composition of the criminal offence for

which the qualification is committed.

At the same time, the Constitutional Court emphasises that in case of disagreement with

this decision of the Court, investigators, prosecutors, or any other person may consider

it "unjust" in terms of subjective perception, while the disposition of Art. 375 of the

Criminal Code of Ukraine allows the possibility of such abuse by the bodies of pre-trial

investigation, as a result of which a judge may be prosecuted only for the fact that he

issued a court decision

Materials and Methods

Arguing their decision, the judges of the Constitutional Court point out that they do not

decide anything at all; they only pass a sentence on the basis of the work of the pre-trial

investigation bodies

. And they - what? Nothing! They only make decisions without

leaving their offices. Everyone has to bring their evidence, and they can only state, based

on their subjective reasoning, "no", for example, "insufficient evidence", "poor vision",

"hard of hearing", and so on. And for this, they can not be attracted! Because they can't

float to anything at all. And in some thoughts quoted, for example, O. Hamilton noted

Decision of the Constitutional Court of Ukraine. Case No. 1-305 / 2019 (7162/19), 2019.

Constitutional Court of Ukraine. A separate opinion of the judge of the Constitutional Court of Ukraine

Horodovenko V.V. concerning the Decision of the Constitutional Court of Ukraine in the case on the

constitutional petition of 55 people's deputies of Ukraine on compliance of the Constitution of Ukraine

(constitutionality) with Article 375 of the Criminal Code of Ukraine. (2020).

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 14, Nº. 2 (November 2023-April 2024), pp. 302-321

Problems and conflicts related to measures to ensure the right to a fair trial in accordance

with the European Convention on Human Rights

Ganna Sobko; Halyna Muliar; Myroslav Hryhorchuk; Oleksandr Holovko; Ivan Draliuk;

Ielyzaveta Lvova

306

that "the executive not only distributes benefits and honours in society, but also holds a

sword over him. The legislature not only manages the treasury but also establishes rules

that govern the rights and responsibilities of every citizen. The judiciary does not dispose

of either the sword or the treasury. It affects neither the strength nor the wealth of

society and cannot make any effective decisions. It would be correct to say that it has

neither strength nor will, but only prudence"

, in addition, the author supports the

position that "this branch is undoubtedly the weakest of the three departments of power,

that its encroachment on the powers of either of the other two branches will never

succeed, while it needs all possible caution to protect them from encroachment".

In our

opinion, the judiciary is not only the most corrupt, but also one that no one can influence

at all. They work for themselves and no elections or re-elections that affect both the

legislature and the executive affect the court at all. They have the right, "in their

subjective judgement" - to determine many decisions that relate not only to certain

powers, as in the executive and legislative branches, but anything. For example, to

determine the legality of dismissal and restore the rights of the individual, to determine

the legality of the occupation of land, and so on.

The Judges further emphasise that the pre-trial investigation bodies threaten the Judges

in making a decision, so the Judges consider that Art. 375 of the Criminal Code of Ukraine

should be decriminalised

, but the Constitution of Ukraine provides for immunity for

judges in Art. 126 of the Constitution of Ukraine in case of their administration of justice

by criminal prosecution. In addition, the inviolability and independence of judges are

guaranteed by the Constitution of Ukraine and the laws of Ukraine; any influence and

pressure on judges is prohibited; decisions made by judges cannot be brought to justice,

the only exception is the commission of a criminal offenсe or disciplinary offenсe

At the same time, it should be borne in mind that, although the independence of judges

is an integral part of their status, it cannot be absolute. In cases where a judge, in the

course of his or her professional activities, makes a knowingly unjust sentence, decision,

ruling, thereby encroaching not only on the basis of justice but also on the rights and

legitimate interests of the victim concerned, he or she should obviously be prosecuted.

criminal liability. This is a generally accepted position. Now let's look at the statistics on

the prosecution of judges. So, statistics show that in 2017, 48 criminal offences were

registered under Art. 375 of the Criminal Code of Ukraine; in 2018 - 1139, in 2019 – 87;

in 2010 – 109; for 8 months in 2021 - 4. At the same time in 2017, no suspicion was

reported in any case and accordingly sent to court with an indictment transferred – 0. At

the end of the reporting period, a decision was not made in 48 criminal proceedings,

closing criminal proceedings - 17. In 2018, suspicion of 0 criminal proceedings was

reported, 0 was transferred to the court with an indictment, and at the end of the

reporting period, a decision was not made in 1138 criminal proceedings; 314 criminal

proceedings were closed.

A. Hamilton et al. Commentary on the Constitution of the United States. (Kyiv: Sfera, 2002).

Decision of the Constitutional court of Ukraine. Case No. 1-305 / 2019 (7162/19), 2019.

Constitution of Ukraine, 1996.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 14, Nº. 2 (November 2023-April 2024), pp. 302-321

Problems and conflicts related to measures to ensure the right to a fair trial in accordance

with the European Convention on Human Rights

Ganna Sobko; Halyna Muliar; Myroslav Hryhorchuk; Oleksandr Holovko; Ivan Draliuk;

Ielyzaveta Lvova

307

In 2019, suspicion of 0 criminal proceedings was reported, 0 was transferred to the court

with an indictment, and at the end of the reporting period, no decision was made in 87

criminal proceedings, of which 11 were closed. In 2020, suspicion of zero criminal

proceedings was reported. At the end of the reporting period, no decision had been

made in 109 criminal proceedings. In the first eight months of 2021, 0 criminal

proceedings were reported, 0 were transferred to the court with an indictment, and at

the end of the reporting period, no decision was made in 4 criminal proceedings (General

Prosecutor of Ukraine, 2021) (Fig. 1). From the given statistical data, it is seen that a

large enough surge occurred in relation to violations of criminal liability under Art. 375

of the Criminal Code of Ukraine for 2018, which was difficult to say, but in our opinion,

there is the beginning of the State Bureau of Investigation, which deals with the

involvement of judges for wrongful sentences and in accordance with Art. 375 of the

Criminal Code of Ukraine. So, in order to prevent the flow of criminal prosecution, the

judges of the Constitutional Court decided to declare this article unconstitutional. Why

do we draw such a conclusion? And because the current Code was adopted in 2001, it is

20 years old, and for 20 years the judges of the Constitutional Court did not notice the

unconstitutional provisions of this article, while after the surge in 2018, they immediately

noticed the discrepancy.

Figure 1. Data on criminal prosecution under Art. 375 of the Criminal Code of Ukraine

Source: Authors

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 14, Nº. 2 (November 2023-April 2024), pp. 302-321

Problems and conflicts related to measures to ensure the right to a fair trial in accordance

with the European Convention on Human Rights

Ganna Sobko; Halyna Muliar; Myroslav Hryhorchuk; Oleksandr Holovko; Ivan Draliuk;

Ielyzaveta Lvova

308

This research was carried out using a number of methods generally accepted by legal

science. The main research method was the normative method, which was used to clarify

the essence and forms of ensuring the right to a fair trial. Using the comparative method,

the features of ensuring the right to a fair trial in Ukraine and abroad are highlighted.

The use of methods of analysis and synthesis and the formal legal method provided a

thorough analysis of the legal framework of international and national law, various

doctrinal approaches, and significant practice of the ECtHR in the context of ensuring the

right to a fair trial and the problems that arise in the course of such ensuring.

Results

From this, it can be concluded that it is precisely this pressure that the Judges of the

Constitutional Court testify about, that they are allegedly afraid of pressure, and that this

pressure is unacceptable to the Judges. Thus, the judges almost say that these pagan

prosecutors, investigators, and others are putting pressure on the government precisely

by threatening to use Art. 375 of the Criminal Code of Ukraine. But how does it actually

happen? Is the threat of instituting proceedings under any article applicable to an

innocent person under pressure? In any case, if a person is innocent, no pressure is

terrible for him. However, if these prosecutors and pre-trial investigation bodies are

pagans, can threaten both life and health, right? What is this threat that does not exist?

Amazingly. But this is not the end of the decision of the Constitutional Court on the

unconstitutionality of Art. 375 of the Criminal Code. It refers to the prosecutor's office

and pre-trial investigation bodies, but the decision, sentence and ruling, as well as other

procedural actions of the court belong not only to cases involving the prosecutor; there

are cases without the participation of the prosecutor in civil and administrative disputes.

Who can put pressure on judges, midwives and defendants? Accordingly, this cannot

serve as a sufficient argument for the decriminalisation of this criminal offence. After all,

the higher the objective harmfulness of the socially dangerous act, the lower its

prevalence may be (for example, the lack of data for several years on the existence of

convictions that have entered into force against persons who committed espionage

(Article 114 of the Criminal Code) does not indicate the need to exclude the specified

composition of the criminal offence from the Criminal Code). In addition, the fact that for

several years no judge has been prosecuted under Art. 375 of the Criminal Code may

indicate the latency of the offence, the insufficient professional level of authorised law

enforcement agencies, the shortcomings of the legislative description of the

characteristics of the specified composition of the criminal offence, and so on.

You will probably have a question. And why did we study the end of 2020 and 2021 in

relation to this article, if it is no longer defined as constitutional? This is where the fun

begins. The Law of Ukraine on Criminal Liability is adopted by the Verkhovna Rada of

Ukraine, and in accordance with the provisions of Part 6 of Art. 3 of the Criminal Code of

Ukraine, any amendments to the Criminal Code of Ukraine may be made only if they are

made by the law amending this Code and/or the criminal procedure legislation of Ukraine,

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 14, Nº. 2 (November 2023-April 2024), pp. 302-321

Problems and conflicts related to measures to ensure the right to a fair trial in accordance

with the European Convention on Human Rights

Ganna Sobko; Halyna Muliar; Myroslav Hryhorchuk; Oleksandr Holovko; Ivan Draliuk;

Ielyzaveta Lvova

309

and/or the legislation of Ukraine on administrative offenсes.

According to these

provisions, articles cannot be considered decriminalised until they are published by laws

amending the Criminal Code of Ukraine, and accordingly, the articles are currently in

force, but with the indication that they are declared unconstitutional. For example, our

article 375 of the Criminal Code of Ukraine reads:

− Article 375. Ruling by a judge (judges) of a knowingly unjust sentence, decision,

ruling or resolution

− (Article 375 was declared unconstitutional) (according to the Decision of the

Constitutional Court No. 7-r/2020 of 11 June, 2020)

1. A judge's (or judges) knowingly unjust sentence, decision, ruling, or resolution shall

be punishable by imprisonment for a term of up to five years or imprisonment for a

term of two to five years.

2. The same acts that caused grave consequences or were committed for selfish motives,

in other personal interests, or in order to interfere with the lawful professional activity

of a journalist shall be punishable by imprisonment for a term of five to eight years

(Article 375, as amended by Law No. 421-VIII of May 14, 2015).

There are a sufficient number of such articles in the Criminal Code. The axis, for example,

excludes the article as Art. 368¹ which expired on the basis of Law No. 2808-VI of

December 21, 2010 and instead uses Art. 368-2. Illegal enrichment, which, like the

previous one, was declared unconstitutional, nevertheless exists and is valid.

Article 368-2. Illegal enrichment

(Article 368-2 has been declared unconstitutional (is unconstitutional), according to the

Decision of the Constitutional Court No. 1-r/2019 from 02/26/2019)

1. Acquisition by a person authorised to perform the functions of the state or local self-

government of ownership of assets in a significant amount, the legality of the grounds

for acquisition of which is not confirmed by evidence, as well as the transfer of such

assets to any other person shall be punishable by imprisonment for a term up to two

years with deprivation of the right to hold certain positions or engage in certain

activities for a term up to three years with confiscation of property.

2. The same acts committed by an official holding a responsible position shall be

punishable by imprisonment for a term of two to five years with deprivation of the

right to hold certain positions or engage in certain activities for up to three years with

confiscation of property.

Verkhovna Rada of Ukraine. Law №619-IX of 2020, “About the modification of some legislative acts of

Ukraine concerning the improvement of procedure of modification“.

https://zakon.rada.gov.ua/laws/show/619-20#n9 (accessed March 22, 2023).

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 14, Nº. 2 (November 2023-April 2024), pp. 302-321

Problems and conflicts related to measures to ensure the right to a fair trial in accordance

with the European Convention on Human Rights

Ganna Sobko; Halyna Muliar; Myroslav Hryhorchuk; Oleksandr Holovko; Ivan Draliuk;

Ielyzaveta Lvova

310

3. The acts provided for in part one of this Article, committed by an official who holds

a particularly responsible position, shall be punishable by imprisonment for a term

of five to ten years with deprivation of the right to hold certain positions or engage

in certain activities for up to three years with confiscation of property.

Note. 1. The persons authorised to perform the functions of the

state or local self-government are the persons specified in

paragraph 1 of part one of Article 3 of the Law of Ukraine "On

Prevention of Corruption".

4. Assets in a significant amount in this article mean cash or other property, as well as

income from them, if their size (value) exceeds one thousand non-taxable minimum

incomes.

5. The transfer of assets in this article means the conclusion of any transactions on the

basis of which the right of ownership or right of use of assets arises, as well as the

provision of cash or other property to another person for the conclusion of such

transactions

In practice, this may lead to the fact that, although the courts may not hear cases, public

authorities (prosecutors) have the right to enter information into the Unified Register of

Pre-trial Investigations under this article and refer the case to the Court on such charges.

fact is unconstitutional, but de jure it exists in the Criminal Code of Ukraine and will not

be able to interfere with the relevant. In such cases, conflicts (contradictions) arise, which

create legal uncertainty.

What is the problem? The problem is that the pre-trial investigation does not want to

investigate criminal offences that are considered unconstitutional, because first, the

prosecutor's office, knowing that they are not defined as unconstitutional by the

Constitutional Court, does not want to sign them. And secondly, even if the case is

brought before the Court, no judge will consider it because it is not collegial with the

judges, who are more respectful and have a different position. There is no conflict of

norms and inconsistencies between the judiciary and the legislature, where everyone

tries to prove to others their more respectable significance. And the law, the rule of law,

the bodies of pre-trial investigation, and accordingly, people (citizens of Ukraine) suffer,

and what can the ECtHR tell us about this?

Answering the questions, we can refer to the case law of the European Court of Human

Rights, so in the case of "Eloev v. Ukraine" of November 6, 2008, the European Court of

Human Rights in its decision drew attention to the fact that identifying legislative gaps

(conflicts) may lead to situations of non-compliance with the principle of legal certainty

in cases where there is no clarity of the formulated provisions as one of the main elements

Verkhovna Rada of Ukraine. Law №770-VIII of 2015, “About the modification of the Criminal Сode of

Ukraine concerning the improvement of the institute of special confiscation for the purpose of eliminating

corruption risks at its application“. https://zakon.rada.gov.ua/laws/show/770-19#Text (accessed March 22,

2023).

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e-ISSN: 1647-7251

Vol. 14, Nº. 2 (November 2023-April 2024), pp. 302-321

Problems and conflicts related to measures to ensure the right to a fair trial in accordance

with the European Convention on Human Rights

Ganna Sobko; Halyna Muliar; Myroslav Hryhorchuk; Oleksandr Holovko; Ivan Draliuk;

Ielyzaveta Lvova

311

of the rule of law

. It follows that legislative gaps (conflicts) may lead to non-compliance

with the principle of legal certainty as one of the main elements of the rule of law, while

the Ukrainian authorities create such conflicts with their own understanding that

contradictions arise. But why? To prove its significance? However, the country suffers,

and the people suffer. Returning to the case of Yeloyev v. Ukraine, the application of a

measure of restraint in the form of detention at the stage of judicial investigation, which

is elected for an indefinite period, does not meet the criterion of "predictability of law"

for the purposes of paragraph 1 of Art. 5 of the Convention. A very large number of

complaints concern the very practise that arises regarding existing conflicts in the law

regarding the detention of persons for an unlimited and unpredictable period. However,

the ECtHR often reminds that such detention in case of unforeseen legislation is in itself

contrary to the principle of legal certainty, which is implemented by the Convention and

is one of the elements of the rule of law.

So, if there are so many appeals to the ECtHR regarding illegal detention, and,

accordingly, detention orders are challenged by the ECtHR, then what kind of pressure

will be put from the prosecutor's office, if the recognition of illegality takes place at the

level of the ECtHR! The judges of the Constitutional Court do not mention this.

However, in Article 91 of the Law of Ukraine “On the Constitutional Court of Ukraine” and

in Article 152 of the Constitution of Ukraine, the Court exercises all its powers for the

purpose of effective constitutional review, taking into account all the circumstances of

the case. In its opinion, the Constitutional Court found that the existence of the criminal

liability of a judge for a “knowingly unjust” decision creates grounds for the emergence

of risks related to the fact that it is allegedly possible to influence the judge by coercion

and coercion due to the assessment concepts at the disposal of Art. 375 of the Criminal

Code of Ukraine. The Recommendation, with reference to Article 6 of the 1950

Convention for the Protection of Human Rights and Fundamental Freedoms, adds that

the aim is to ensure the independence of the judiciary, which guarantees everyone the

right to a fair trial by law and without any influence from outsiders”

. Here, the judges

emphasise that they are being resisted by the pre-trial investigation, but they do not see

their guilt in passing an unjust sentence, ruling, or ruling.

The Venice Commission or the European Commission at the 86th plenary session "For

Democracy through Law" noted that legal certainty is one of the essential elements in

the rule of law

. According to legal certainty, the requirement is as follows: clarity and

European Court of Human Rights. The case of Yeloyev v. Ukraine (2008). Application no. 17283/02 of 2008.

https://zakon.rada.gov.ua/laws/show/974_433#Text (accessed March 22, 2023).

European Court of Human Rights. Case of Kawka v. Poland. (2001). Application no. 25874/94 of 2001.

https://www.stradalex.com/en/sl_src_publ_jur_int/document/echr_25874-94_001-46067 (accessed

March 22, 2023). European Court of Human Rights. Case of Baranowski v. Poland. (2000). Application no.

28358/95 of 2000. https://www.stradalex.com/nl/sl_src_publ_jur_int/document/echr_28358-95_001-

4020 (accessed March 22, 2023).

Josef Abrhám et al., “Energy security issues in contemporary Europe”. Journal of Security and Sustainability

Issues 7, no. 3 (2018): 387-398. https://doi.org/10.9770/jssi.2018.7.3(1)

“Guide to article 6. The right to a fair trial (civil part)“. European Court of Human Rights. (2013).

https://www.echr.coe.int/Documents/Guide_Art_6_UKR.pdf (accessed March 22, 2023).

“Item 41 European commission "For democracy through law". Venice commission. (2011).

https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2011)003rev-ukr

(accessed March 22, 2023).

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accuracy, which are aimed at ensuring legal norms in which legal relations are

predictable

The Committee of Ministers of the Council of Europe in its decision of September 23–25,

2019 noted its uncertainty about the threat to judicial independence in cases under

Article 375 of the Code of Abuse of Prosecutors of Criminal Investigations, the oversight

procedure for the implementation of the European Court of Human Rights in the Ukraine

case "Alexander Volkov v. Ukraine".

One of the main tasks of the criminal law policy of the state of Ukraine is to counteract

and prevent criminal offences committed by judges in the field of justice, which is

committed to facilitating the administration of justice, based on justice, legality, and

assistance in making reasonable and lawful judgements in Ukraine. Mechanisms for

ensuring the principles of the rule of law under the provisions of the Constitution of

Ukraine.

In connection with the recognition of Article 375 of the Criminal Code as unconstitutional,

the judge was supposed to "decriminalise" a deliberately unjust decision, but as

mentioned earlier, this was not blown away due to the fact that a law was passed

according to which any changes could take place. In the Criminal Code only in cases of

amendments to the Laws of Ukraine concerning pre-trial investigation of certain

categories of criminal offences

For example, the case of "Gelenidze v. Georgia", which is relevant to the exclusion of Art.

375 of the Criminal Code of Ukraine from the criminal legislation of Ukraine. In this case,

the judge was prosecuted under an article similar to Art. 375 of the Criminal Code of

Ukraine. But during the trial, she was decriminalised in Georgia. At that time, the

prosecutor's office decided to reclassify this article to another, which did not concern the

special subject "Judge", but the general one as an abuse of office. The court granted the

prosecutor's request and prosecuted the judge, with both the appellate court and the

Supreme Court upholding the decision.

In this connection, the applicant applied to the ECtHR for a violation of Art. 6 of the

Convention. Thus, the ECtHR satisfied the petition of the plaintiff, having defined a

violation of Art. 6. However, the applicant's complaint under Article 6 of the Convention

was twofold: first, the prosecutor's application and the subsequent decision of the

appellate court to change the legal classification of the offence for which she had been

convicted were arbitrary; second, the applicant was not given sufficient time to prepare

his defence on the new charges.

As for the reasoning for the reclassification of the said decision, the government noted

that Art. 336 of the Criminal Code of Georgia is a lex specialis to Article 332 of the

Criminal Code of Georgia. In its objections, the government stated that no retraining had

“Item 46 European commission "For democracy through law". Venice commission. (2011).

https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2011)003rev-ukr

(accessed March 22, 2023).

Verkhovna Rada of Ukraine. Law №2617-VIII of 2019, “About the modification of some legislative acts of

Ukraine concerning the simplification of pre-judicial investigation of separate categories of criminal

offences“. https://zakon.rada.gov.ua/laws/show/2617-19#n42 (accessed March 22, 2023).

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taken place and that the amount of the original charge had been exceeded. However,

the judges of the ECtHR did not agree with this argument. The basis of the statement

was the assertion, however, that the bill on decriminalisation, which was prepared and

adopted by the legislator, contradicts the law. Paragraph 18 of this decision stated that

the purpose of the proposed changes is to decriminalise the rule (exclusion) for the

adoption of an illegal decision or court decision, which was clearly stated in the

explanatory note to this bill. However, referring to the case in which paragraph 6 of this

decision stated that the only charge against the applicant was the adoption of an illegal

court decision in the prosecutor's decision of October 26, 2005 transferring the case to

court. Other references that would relate to the lex specialis nature of Art. 336 and Art.

332 of the Criminal Code of Georgia were not made, and accordingly, the charges. It can

be concluded from the above that the investigation into the applicant concerned

exclusively an offence related to the adoption of an illegal court decision. The same

conclusions can be drawn with regard to the subsequent proceedings against the

applicant in absentia. The regulatory part of the relevant ECtHR decision stated that the

issue of the possibility of criminalising the applicant for abuse of office as an alternative

rule was not considered or raised at all

. In the Court of Appeal, the court replaced one

article with another in view of the above, after which the applicant lodged a complaint.

The appellate court reclassified without taking into account the differences between these

norms under Georgian law

. The composition of the criminal offence under Art. 336 of

the Criminal Code of Georgia consisted in the adoption of an illegal court decision or

decision without any motive that was illegal and improper (improper motive), but was a

mandatory element of a criminal offence of abuse of office under Article 332 of the

Criminal Code of Georgia

We believe that it is true that in this direction of the Court of Appeal's arguments

regarding the provisions of the ECtHR, which were particularly impressive, as Art. 3 of

the Criminal Code of Ukraine clearly provided for the retrospective application of the

decriminalized rule of the law of Ukraine on criminal liability. According to Art. 28 of the

CPC of Ukraine, which provides for the immediate and mandatory termination of

proceedings if there is a decriminalization of a socially dangerous act, the only exception

is when the accused wants to continue the trial. But even in this case, the law of Ukraine

stipulates that even if he is found guilty, the court must release the person from serving

the sentence. It did not end there, and the Supreme Court upheld the decision of the

Court of Appeal, excluding the above provisions from its grounds and failing to consider

their application to the specific circumstances of the applicant's case, which was both

procedural and essentially unfair. However, the ECtHR found that both the procedure and

the manner in which the applicant was charged were in breach of the principle of equality

of arms and arbitrary.

The Supreme Court did not correct the arbitrary decision of the

appellate court. Therefore, the ECtHR concluded that paragraph 1 and subsequent

European Court of Human Rights. Case of Anđelković v. Serbia. (2013). Application no. 1401/08 of 2013.

http://www.zastupnik.gov.rs/uploads/Andjelkovic_1401-08_eng.pdf (accessed March 22, 2023).

Criminal Code of Georgia,1999, Article 332/336.

Criminal Code of Georgia, 1999, Article 332/336.

European Court of Human Rights. Case of Anđelković v. Serbia. (2013). Application no. 1401/08 of 2013.

http://www.zastupnik.gov.rs/uploads/Andjelkovic_1401-08_eng.pdf (accessed March 22, 2023).

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paragraphs had been violated. "A" and "b" paragraph 3 of Art. 6 of the Convention apply

in this case.

According to this provision, the ECtHR has noted in advance that this will not be the case

in Ukraine and that the prosecutor's office will not be able to reclassify Art. 375 of the

Criminal Code as Art. 364 of the Criminal Code of Ukraine. However, our legislation,

namely the Criminal Code, is formulated somewhat differently than in Georgia. For

example, Art. 364 of the Criminal Code of Ukraine is formulated as a material composition

in contrast to Art. 375 of the Criminal Code, which is a formal composition. What it means

and the fact that in violation of Art. 364 of the Criminal Code necessary consequences

have been caused significant damage to the rights protected by law, where under the

damage according to Note 3 is recognized the amount that is 100 times or more than the

tax-free minimum income. For 2021, one NMDG is UAH 1,147, and accordingly, 114700

is the amount that must be determined as a consequence of the commission of Art. 364

of the Criminal Code of Ukraine. How to determine the damage caused and how difficult

it is to prove it when a judge (judges) makes a knowingly unjust sentence, decision,

ruling or resolution? In our opinion, it is almost impossible.

Let us turn to the analysis of the criminal legislation of some foreign states, regarding

the similar composition of the criminal offence available in their national legislation. The

Criminal Code of Spain provides for several types of criminal offences relating to judges,

as follows: Art. 446 of the Criminal Code of Spain: "Issuance of an illegal sentence or

decision"; Art. 447 of the Criminal Code of Spain: "Passing a clearly illegal sentence or

decision due to gross negligence or ignorance"; Art. 448 of the Criminal Code of Spain:

"Refusal to make a sentence or decision without a legitimate reason or under the pretext

of alleged ambiguity, inadequacy of the law or a gap in the law"; Art. 449 of the Criminal

Code of Spain: "Malicious delay of justice to achieve any illegal goal."

Criminal liability is also established in the French Criminal Code: malicious refusal to

administer justice after receiving the relevant procedural appeal (Article 434-7-1).

Paragraph 339 of the German Penal Code establishes liability for an unfair decision,

sentence or ruling, meaning a refusal to hear a case or decisions rendered in favor of or

to the detriment of a procedural party by judges or other officials or arbitrators. In the

Criminal Code of Serbia In the Criminal Code of Serbia, Art. 243 of the Criminal Code of

Serbia defines criminal liability for intentional acts committed by judges in the

performance of their functions. The Criminal Code of Bulgaria (Articles 294), the Criminal

Code of Denmark (§ 146, § 148), the Penitentiary Code of Estonia (Part 4 of Article 311),

and the Criminal Code of Latvia (Articles 291-293).

In our opinion, based on the above considerations, it is possible that criminal liability for

the decision of judges making knowingly unjust decisions can not be considered only

"unsuccessful borrowing" from the Soviet Union because the modern law of Ukraine on

criminal liability exists in other countries and has similar criminal structures of offences.

In addition, it should be noted that there is no criminal liability, judges are not subject

to criminal liability for their decisions, rulings and resolutions in countries such as Ireland,

Great Britain and Cyprus. In some countries, judges are liable for wrongful decisions only

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if they have committed corruption offences, namely Italy, Liechtenstein, Norway,

Portugal, Romania, Slovenia, Hungary, Croatia and Sweden.

Discussion

In 2018, amendments to Art. 375 of the Criminal Code of Ukraine, namely before it was

declared unconstitutional according to the decision of the Constitutional Court No.7-

r/2020 of November 6, 2020, namely in the Draft Law of Ukraine of February 28, 2018

No. 8077, it was proposed to amend Part 1 of Art. 375 of the Criminal Code in the

following wording: “for intentional adoption by a judge or investigating judge of a

knowingly illegal or unreasonable sentence, decision, ruling or court order made for

selfish or other personal reasons, or if it caused significant damage to legally protected

rights, freedoms and interests of citizens; state or public interests, or the interests of

legal entities".

The proposals were made as a result of the recommendations of the

Council of Europe's Group of States against Corruption (GRECO) in 2017, following the

Fourth Evaluation Round on the Prevention of Corruption among MPs, Judges and

Prosecutors. unjust sentence, decision, ruling or resolution "and / or at least other

security

Already in 2020, GRECO, evaluating the implementation of the recommendations

provided to Ukraine based on the results of the Fourth Evaluation Round, stated that

there was no progress in the implementation of this recommendation. The discrepancy

of Art. 6 of the Convention on law and a fair trial are not fulfilled not only in the example

given in Art. 375 of the Criminal Code of Ukraine. They are not fulfilled in others, so we

offer a number of inconsistencies.

In our criminal law there are special rules that are designed to protect public relations

that protect justice, for example in Art. 374 of the Criminal Code "Violation of the right

to protection", and Art. 397 of the Criminal Code "Interference in the activities of a lawyer

or a representative of a person." On the one hand, a socially dangerous act as part of a

criminal offence, which exists in Part 1 of Art. 374 of the Criminal Code "inadmissibility

or failure to provide timely defence counsel, as well as other gross violations of the rights

of the suspect, accused to defense", in addition, this article clearly states the conduct of

officials, namely investigators, prosecutors and judges, but this article`s liability only

exists in cases concerning the right to defence in criminal proceedings. The literal

interpretation of the Law of Ukraine on Criminal Liability shows that the violation of the

right to legal aid does not apply to civil proceedings and is therefore not covered by this

article. The conclusion is based on the fact that in Art. 374 of the Criminal Code of

Ukraine, the actions of a participant in the process such as a defender, are not mentioned.

A defender is not listed among the participants in civil proceedings, but in Art. 374 of the

“On amendments to some legislative acts of Ukraine regarding the improvement of certain norms for the

purpose of inevitability of punishment of persons who have committed corruption crimes“. Draft law of

Ukraine. (2018). https://ips.ligazakon.net/document/JH68D00A (accessed March 22, 2023).

“On amendments to some legislative acts of Ukraine regarding the improvement of certain norms for the

purpose of inevitability of punishment of persons who have committed corruption crimes“.Explanatory note.

(2018). https://ips.ligazakon.net/document/JH68D00A (accessed March 22, 2023).

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Criminal Code of Ukraine, the victims are "suspect", "accused" and "defendant", who are

participants in the criminal procedure legislation but are not defined in the civil procedure

legislation.

To assist Art. 374 of the Criminal Code of Ukraine, various forms of obstruction may be

brought to the attention of Art. 397 of the Criminal Code of Ukraine by the defence

counsel or the person providing assistance in committing these actions. Again, defining

the conduct of an official recognised by the Court as a violation of a socially dangerous

act described in Art. 397 of the Criminal Code could cover the considered behaviour of

the official recognised by the Court as a violation of item 1 of Art. 6 of the Convention.

However, this article of the Criminal Code is intended to protect not just any defender

and representative, but a specific defender and representative. When the issue of

obtaining assistance in refusing the applicant arose, it was generally impossible to obtain

legal aid in a civil case. In this example, the court found a violation of the right of access

to justice; it does not matter the guilt of the person because any person has the right to

protection. The ECtHR does not deal with the selection of guilty persons for violating the

Constitution, but only characterises the existence of problems with the correct criminal-

legal qualification of an act committed by a person. The Court of Justice of the European

Court of Human Rights is not a court of higher instance in relation to the judicial system

of a state party to the Convention

Accordingly, the ECtHR cannot amend or revoke a judgement of a court of a country that

has ratified the Convention, and the court does not give instructions to the legislator of

a member state, but only determines the inconsistency of the decision of the Convention.

Accordingly, it does not exercise control over the participating countries (Borisov, 2004).

The ECtHR's recommendations are a test of decades of the Court's principles and

guidelines. However, I would like to note that such a policy does not work in those

countries where corruption prevails, and, accordingly, social needs and state policy are

not aimed at meeting European human rights standards. As an example, a large number

of ECtHR decisions recognising violations of life imprisonment rights, such as Kuznetsov

v. Ukraine and Aliyev v. Ukraine, can be cited. Thus, there are a large number of decisions

of the court concerning persons serving life sentences, in which the ECtHR has recognised

the violation of the rights of these persons by the court in most cases; this applies to Art.

3 and 8 of the Convention, but as noted above, the сourt cannot decide on the

prosecution of perpetrators, but can only determine the fact of violations.

However, at

the same time, it can be argued that Art. 375 of the Criminal Code of Ukraine, if there

are such a large number of appeals to the ECtHR regarding violations of Art. 6 of the

Convention and just here there is no pressure from the pre-trial investigation, which

draws the attention of the Constitutional Court of Ukraine.

From this, it can be concluded that the statement of the fact that certain (judges, officials)

committed criminal offences against those persons whose complaints the Court

considered the relevant cases. However, the impossibility in the decision of the Court to

M. Inshyn et al., “Transformation of labor legislation in the digital economy”. InterEULawEast 8, no. 1

(2021): 39-56. doi:10.22598/iele.2021.8.1.3

European Court of Human Rights. Case of Aliev v. Ukraine. (2003). Application no. 41220/98 of 2003.

https://zakon.rada.gov.ua/laws/show/980_202#Text (accessed March 22, 2023).

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make an instruction on the need to prosecute the person who committed the identified

violations makes it impossible to apply Art. 375 of the Criminal Code of Ukraine to judges

who commit such acts. In this case, the ECtHR court pays the person for the violation of

the court, the state suffers damages, and the courts do not feel any consequences. As

regards persons in respect of whom they have been found guilty of life imprisonment,

although they have received certain monetary compensation, their detention continues

under the same conditions, and they do not have the right to seek redress from the Court

on the same matter. There are exceptions, but this should be the rule, so in the case of

Naumenko v. Ukraine, a report was submitted to the European Committee for the

Prevention of Torture and Inhuman or Degrading Treatment or Punishment in respect of

disciplinary sanctions and punishments applied in accordance with convicts' complaints.

regarding ill-treatment

From the documents that are publicly available, it is impossible to trace the involvement

of at least one person in such acts. In the published case law of Ukraine in the Unified

State Register there were no cases of initiation of cases against officials who committed

criminal offences against convicts serving sentences in penitentiary institutions of

different types of detention (closed and open). In view of this, it is argued that persons

found by the ECtHR guilty of torture and inhuman treatment in our country are not even

considered to be prosecuted, and information is not entered into the Unified Register of

criminal proceedings. Accordingly, it appears that they remain unpunished

However, I would like to draw attention to the fact that this is happening not only in

Ukraine. For example in the case of Labita v. Italy, which found a violation of several

articles of the Convention, but also did not specify whether to prosecute those

responsible. and made decisions

. In the case of Ertak v. Turkey, it was established that

the death of Mehmet Ertak was in connection with the actions of officials during his

imprisonment, and the court found that the Government had violated Art. 2 of the

Convention. However, the ECtHR did not recognise the possible prosecution of officials

responsible for the death and, consequently, did not conduct an effective and sufficient

investigation into the circumstances of Mehmet Ertak's disappearance and death.

There

are exceptions, for example, in Berktay v. Turkey, the ECtHR pointed out that a Turkish

court acquitted officers without any justification for the lack of causation between the fall

of Devrim Berktay and the actions of the accused

The largest number of appeals from Ukraine concerns complaints concerning the non-

execution of court decisions, namely the presence of violations in such cases of Art. 6 or

European Court of Human Rights. Case of Naumenko v. Ukraine. (2004). Application no. 41984/98 of 2004.

https://zakon.rada.gov.ua/laws/show/980_353#Text (accessed March 22, 2023).

M. Inshyn, and O. Moskalenko. “Ensuring freedom of labor in Ukraine in the context of labor emigration”.

Baltic Journal of Law and Politics 11, no. 2 (2018): 1-31. doi:10.2478/bjlp-2018-0009

European Court of Human Rights. Case of Labita v. Italy. (2000). Application no. 26772/95 of 2000.

https://zakon.rada.gov.ua/laws/show/980_009#Text (accessed March 22, 2023).

European Court of Human Rights. Case of Ismail Ertak v. Turkey. (2000). Application no. 20764/92 of 2000.

http://search.ligazakon.ua/l_doc2.nsf/link1/SO2357.html (accessed March 22, 2023).

European Court of Human Rights. Case of Berktay v. Turkey. (2001). Application no. 22493/93 of 2001.

http://search.ligazakon.ua/l_doc2.nsf/link1/SO2494.html (accessed March 22, 2023).

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Art. 13 of the Convention, which testifies to the crisis situation in Ukraine with respect

for human rights and fundamental freedoms in this area of relations.

Conclusion

Proclaimed rights in Art. 6 of the Convention on the Right to a Fair Trial are designed to

protect human rights in the first place. However, in our country, it is proposed to protect

not the defenceless people, who stand against the background of the law, which is

proclaimed in law and real, when Ukraine ranks 3rd in the world in the number of appeals

to the ECtHR. And despite the fact that the Convention is designed to protect the most

vulnerable in society, in practice, according to the decisions of the Constitutional Court,

those people are judges. The register of court decisions shows that with the enactment

of the Criminal Code in 2001, 15 convictions were handed down for criminal liability under

Article 375. “Judgement (s) of a judge (judges) knowingly unjust sentence, decision or

ruling”. 15 sentences in 20 years. All this is happening along with the fact that almost

95% of the people do not trust and consider the courts to be the most corrupt branch of

government. However, the Constitutional Court came to the conclusion that this article

contradicts the Constitution of Ukraine and allows for pressure on the Court.

It is determined that the Constitutional Court has no right to decriminalise articles in the

Criminal Code, but only the right to declare them unconstitutional, but their existence in

law continues to exist, only with a sign of unconstitutionality. In the near future, it will

be necessary to wait for the judges of the Constitutional Court to appeal to the European

Court of Human Rights with a complaint about the non-execution of the Judgement.

However, the analysis of statistical data shows that at the same time, the existence of

Art. 375 of the Criminal Code meets the needs of all branches of government. Yes, no

case is initiated at the stage of pre-trial investigation due to its unconstitutionality, but

the authorities allegedly did not decriminalise it, and it remains in the law of Ukraine on

criminal liability.

It is determined that some countries have articles for which judges can be prosecuted,

while others do not have general liability, but can be prosecuted if a criminal offence is

found to be corrupt. Recognition of Art. 375 of the Criminal Code of Ukraine as

unconstitutional in practise will lead to the fact that the courts will not consider cases

because Art. 375 of the Criminal Code is declared unconstitutional and cannot be de facto

applied, while de jure it is not excluded and the pre-trial investigation bodies and the

prosecutor's office may enter information into the Unified Register of pre-trial

investigations under this article and refer the case to the Court. This creates legal

uncertainty.

We have concluded that the decision of the European Court of Human Rights in the case

“Gelenidze v. Georgia "to the exclusion of Art. 375 of the Criminal Code of Ukraine,

because Art. 364 of the Criminal Code of Ukraine is formulated as a material composition

in contrast to Art. 375 of the Criminal Code, which is a formal composition, what it means,

and the fact that in violation of Art. 364 of the Criminal Code necessary consequences

have occured that have caused significant damage to the rights protected by law. Where

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under the damage according to Note 3 is recognised the amount that is 100 times or

more than the tax-free minimum income. For 2021, one NMDG is UAH 1,147, and

accordingly, 114700 is the amount that must be determined as a consequence of the

commission of Art. 364 of the Criminal Code of Ukraine. How to determine the damage

caused and how difficult it is to prove it when a judge (judges) makes a knowingly unjust

sentence, decision, ruling or resolution? In our opinion, it is almost impossible.

In addition, the ECtHR, in determining the violation of Art. 6 of the Convention "Right to

a Fair Trial", in which is the dominant quantitative component, on the appeals of

Ukrainians to the ECtHR, has no right to influence national law to prosecute those guilty

of wrongdoing, as a result of which judges remain unpunished and not prosecuted.

responsibility. Which, in our opinion, is a gap that needs to be addressed by amending

national legislation. And if there is a violation of Art. 6 of the Convention in relation to a

certain person, in parallel, conduct a pre-trial investigation against the judges who made

such a decision. In case of proving the illegality of the decision, rulings and resolutions

to impose fines on judges and deduct the amounts imposed on the state as a result of

the violation of Art. 6 of the Convention by this judge.

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