Balitskiy v. Ukraine

Violation of right to defence

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ECtHR revealed systemic problems in the access to a lawyer in Ukraine

Strategic Litigations Centre (http://hr-lawyers.org/en/index.php) in several cases raised two problems related to prompt access to legal assistance.

The first stemmed from the practice of the use of “administrative detention” for the purpose of criminal investigation that deprived the suspect of any safeguards inherent to a criminal suspect (see Doronin v. Ukraine no. 16505/02, Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, Nechiporuk and Yonkalo v. Ukraine, no. 42310/04)

The second was the result of manipulation with gravity of a charge by prosecuting authorities. It concerns, as a rule, the investigation of a murder. The investigator initially classified the crime imputed as a "simple" murder or inflicting grave bodily harm resulting in death, interrogated a suspect and then reclassified the crime to aggravated murder. The sense of this trick was to circumvent requirement of mandatory legal representation in case of aggravated murder (see Leonid Lazarenko v. Ukraine, no.22313/04; Yaremenko v. Ukraine, no.32092/02, BORTNIK v. UKRAINE, no. 39582/04)

In its recent judgment in the case of Balitskiy v. Ukraine, the Court, referring to Article 46 of the Convention indicated that “both issues can be said to be recurrent in the case-law against Ukraine”.

The Court also noted that the “issues should be addressed by the domestic authorities to avoid further repetitive complaints of this type” (§ 53) and that “having regard to the structural nature of the problem disclosed in the present case, the Court stresses that specific reforms in Ukraine’s legislation and administrative practice should be urgently implemented in order to bring such legislation and practice into line with the Court’s conclusions in the present judgment to ensure their compliance with the requirements of Article 6”.

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Published In: Civil Rights Updates, Criminal Law Updates, Professional Malpractice Updates

Reference Info:Decision | Ukraine

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Arkadiy Bushchenko | Attorney Advertising

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