Western Compliance Option: Lawyer Serhii Voichenko Advocates for ECHR Standards in Ukrainian Justice

In recent years, Ukraine has emerged as a leading contributor to the number of applications submitted to the European Court of Human Rights (ECHR). In 2022, Ukraine ranked third among all states in terms of human rights violation complaints. The ECHR's 2022 report reveals that Ukraine received 10,400 complaints, representing 14% of the total cases - writes Serhii Voichenko.

Statistics indicate a troubling trend. In 2021, the ECtHR issued 144 decisions on cases against Ukraine, with 141 (97.8%) recognising at least one violation of human rights. In 2020, the Court found at least one violation in 95.3% of cases, rising to 98.4% in 2021.

A closer look at recent years' statistics highlights significant issues within Ukraine's justice system, particularly concerning the presumption of innocence and respect for human rights throughout the criminal process, including the right to defence. This situation casts Ukraine in an unfavourable light among European partners and the broader international community, jeopardising its prospects for EU and NATO membership.

To explore these challenges further, we spoke with Serhii Voichenko, a prominent lawyer, PhD, and managing partner of the "Voichenko and Dulskyi" Bar Association. Voichenko emphasises that the decisions of the ECtHR should serve as a model for Ukrainian justice, underscoring the importance of aligning national practices with European human rights standards.

Your bar association is renowned for its significant number of successful cases at the ECtHR. Simultaneously, your lawyers are actively involved in reforming the judicial system to align with European standards. In your opinion, what is the reason that Ukraine has consistently been among the top five countries with the highest number of human rights violations cases for several years?

The fact is that non-compliance with human rights has been a longstanding issue. 

Today, it is becoming critical for our state's global image. Corruption, incompetence, and irresponsibility affect nearly all branches of government to some extent. Recall the state of affairs 5-10 years ago. 

At that time, the law enforcement and judicial systems effectively collapsed. Under the guise of reforms and lustrations, entirely populist measures were implemented, leaving the law enforcement system severely weakened. The lack of professional personnel made it impossible to adequately address offences, including those committed by top officials. 

This issue permeated the entire system, from the former General Prosecutor's Office to the district courts. Consequently, investigations and verdicts were often based on either unsubstantiated evidence or populist or commissioned motives. As a result, people are compelled to turn to the ECtHR, seeking real legal protection against the corruption schemes that have devastated individuals, their reputations, businesses, health, and families.

Could you elaborate on the motives behind the pressure and the objectives pursued by the organisers of such schemes?

In all domestic law enforcement agencies, the directive for targeting a specific enterprise or individual is referred to as "nightmaring the client." 

This term implies subjecting the target to maximum pressure—initiating a criminal case against them, disrupting their routine, and placing them in a difficult position to gain an advantage, either for the agency itself or for the client who requested the action. This advantage can be material, such as financial gain, or conditional, for instance, if the target is obstructing the client's interests in some way. 

If the target holds a significant position in society and the initiation of criminal proceedings on a falsified pretext becomes too conspicuous and ineffective, other resources are employed. These primarily include mass media and social networks, which are utilised to harass the individual, making it exceedingly difficult for them to restore their reputation.

Based on your experience of defending the rights of Ukrainian citizens at the ECHR, can you recall any unique or particularly compelling cases?

Each case is unique and challenging in its own way. Behind the dozens of volumes of documents lies an individual's fate and their right to a fair and impartial trial. We have handled cases that we initially doubted would succeed even in Europe, yet, against the odds, we achieved justice for our clients.   

Among the recent cases, one particularly stands out, which I am currently working on with my partner, Oleksandr Dulskyi. This is the case of Oleksiy Omelianenko. It is exceptional because, almost for the first time in the history of Ukrainian cases, the ECtHR decided to proceed at the consideration stage without awaiting a verdict from our national courts. Typically, the ECtHR issues its decision only after the Ukrainian court has rendered its judgment.

Indeed, it was an unusual event! What was the reason behind it?

First of all, the procedural violations in the case were so flagrantly illegal and evident that the European judges did not have to wait for a decision from their Ukrainian colleagues to recognise the violation of our client's rights.

To clarify, let me explain step by step. In 2017, criminal proceedings were initiated against Ukrgasbank, and subsequently, Oleksiy Omelianenko became involved in the case. 

He was accused of embezzling 68 million hryvnias from the already nationalised Ukrgasbank. The Department for Investigating Especially Important Cases in the Economic Sector of the Prosecutor General's Office took charge of the case. This department, according to various sources and media definitions, was established to exert pressure on opponents and initiate contract criminal proceedings. Notably, the former deputy head of this department was recently sentenced to seven years for similar corruption violations.

Exactly which of Omelianenko's rights were violated?

There were numerous violations, so much so that the description in the complaint to the ECHR spanned several dozen pages. The key point highlighting the ordered nature of the case is that, according to the jurisdiction defined by the Criminal Procedure Code of Ukraine, Omelianenko's case should have been investigated by the National Anti-Corruption Bureau of Ukraine (NABU), not the General Prosecutor's Office. Why? 

Because NABU was established in 2016, and the case against Omelianenko was registered a year later, clearly falling under NABU's jurisdiction. According to the law, cases that fall under NABU's jurisdiction cannot be investigated by other bodies. Thus, there was a gross procedural violation right from the registration stage of this criminal proceeding.

Then why didn't NABU take up the Omelianenko case itself?

First of all, I doubt that NABU would have identified any signs of illegal activity on Omelianenko's part. NABU was recently established under pressure from our Western partners, who also approved its leadership. It is unlikely that NABU would want to undertake such a questionable task against Omelianenko.

Secondly, all evidence and indicators suggest that the case against Omelianenko was entirely fabricated. As previously mentioned, the Department for Investigating Especially Important Cases in the Economic Sector of the Prosecutor General's Office was essentially created for "ordered" cases. Thus, it is not surprising that this case ended up in their hands.

Regarding the most egregious violations in this case, another critical factor is the improper handling of our client's access to case materials and procedural documents. Omelianenko was barely allowed to review the documents and case materials and was simply confronted with the facts without any explanation or clarification of his rights, and was pressured to sign the papers they prepared.

Given that the case was contrived and there was no actual violation of the law by Omelianenko, the investigation dragged on as it failed to uncover any illegal activities that could stand up in court. This brings us to the third significant instance of arbitrariness: the blatant disregard for the investigation's timeline.

According to Clause 4 of Part 3 of Article 219 of the Criminal Procedure Code of Ukraine: "From the date of notification of a person of suspicion, the pre-trial investigation must be completed within two months from the date of notification of the person of suspicion of committing a crime."

This deadline had expired. Although the pre-trial investigation can be extended, it must follow a specific procedure and timeline as stipulated by the Criminal Procedure Code. This means prosecutors must apply to an investigating judge for an extension, who then examines the validity of the request and decides whether to grant or deny it.

Under Clause 10 of Part 1 of Article 284 of the Criminal Procedure Code of Ukraine, criminal proceedings must be closed if, after notifying a person of suspicion, the pre-trial investigation period as defined by Article 219 has expired, except in cases involving serious or particularly serious crimes against a person's life and health.

The Constitutional Court of Ukraine, in its decision dated January 30, 2003, No. 3-рп/2003, emphasised: "Thus, the law establishes a general rule – the pre-trial investigation must be completed within two months, and the extension of this period is an exception to this rule. Adherence to the deadlines of the investigation is one of the conditions for the rapid and complete disclosure of crimes."

Therefore, under any circumstances, the pre-trial investigation period should not exceed the limits of necessity. The investigation must be completed promptly without violating the right to a fair trial and the right to an effective remedy, as provided in Articles 6 and 13 of the Convention on the Protection of Human Rights and Fundamental Freedoms.

In an attempt to salvage the failing case, the prosecutors sought an extension of the pre-trial investigation period from the court. However, on June 6, 2018, the court denied this request.

Based on the court's decision to refuse the extension, the lawyers filed a complaint with the Ukrainian court, arguing that, according to Ukrainian law, if an extension is denied, the case must either be referred to the court immediately or closed.

On August 6, 2018, the court reviewed our arguments and ruled that the prosecutor must make a final decision in the case within five days, in accordance with Article 284 of the Criminal Code of Ukraine. This meant that by August 11, 2018, the prosecutor had to either:

• Close the case due to the expiration of the pre-trial investigation period, or
• Refer the case to court.

That is, on August 11, 2018, the case should have been closed or referred to the court.

However, the investigators of the General Prosecutor's Office defiantly ignored the decisions of the Ukrainian courts and continued the illegal criminal prosecution of Omelianenko. They even initiated new proceedings from the case, despite the fact that the deadlines for these proceedings, according to current legislation, had long expired. This is a clear violation of Part 2 of Article 283 of the Criminal Procedure Code of Ukraine, which stipulates that after the end of the pre-trial investigation period, the adoption of any procedural decisions is not allowed. Unfortunately, it seems that the law does not apply to the Ukrainian General Prosecutor's Office.

How do you assess the actions of the Ukrainian justice system in this case?

To illustrate the situation more clearly, let's look at some specific examples. The court initially placed our client in custody on April 18, 2018, with bail set at UAH 68 million at the request of the General Prosecutor's Office of Ukraine. However, the appellate authority later reduced the bail amount to UAH 7 million. After one of Omelianenko's friends paid the bail, our client was released from custody.

Yet, despite this, the prosecutors soon returned to court with a new demand for bail, this time for UAH 39 million, even though the original bail had already been paid. This demand was entirely groundless, but the judge of the Pechersk District Court of Kyiv inexplicably granted the Prosecutor's Office's request, placing our client in custody again. 

To make matters worse, the court inexplicably set the bail at UAH 90 million, which is 2.5 times higher than the amount demanded by the prosecutors. This blatant disregard for Ukrainian legislation is unacceptable.

After the change of government, thanks to our efforts and the fact that some judges still adhere to the law, we managed to convince the court to make a lawful decision, and our client was eventually released from custody under a personal commitment.

However, this was not the end. Omelianenko was charged under Article 191 of the Criminal Code of Ukraine concerning events at Ukrgasbank in 2010. Article 191 applies to officials of an enterprise where embezzlement or misappropriation of property took place. Omelianenko had resigned from the bank six years before the alleged crime, making it impossible for him to be prosecuted as an "official."

Moreover, the alleged criminal events did not occur at the bank. The investigation absurdly tried to frame a completely legal debt transfer operation between the bank and a client as a "criminal deal." If anything, the bank actually became several tens of millions richer from the transaction, rather than suffering any losses. Thus, there was no embezzlement or misappropriation.

For actions to be qualified under Article 191, there must be proven losses, which were absent in this case. Additionally, Omelianenko had no connection to the company involved—not as a founder, employee, or person with a conflict of interest.

Further compounding the issue, the main witness against Omelianenko had a personal vendetta and ulterior motives, which we will undoubtedly prove once the court starts considering the case. 

Another witness, the former director of the company that received the loan, agreed to testify against Omelianenko only after intense pressure and intimidation from the Prosecutor's Office. In exchange for his testimony, the prosecutors reclassified his case from Article 191 to Article 205 (fictitious enterprise), which was decriminalised at that time, giving him a clear personal interest to slander Omelianenko.

Additionally, the indictment was handed to our client on January 1, 2020, as a "gift" for the New Year. The prosecutor was so careless after the celebrations that he handed over the original indictment instead of a copy, a gross violation of the Criminal Procedure Code, warranting the court to return the indictment to the General Prosecutor's Office for correction.

There are many other violations and errors by the investigators that I could name, but detailing all of them would extend our conversation indefinitely. To highlight the scale of these violations, we have prepared over 240 complaints and statements about breaches of Ukrainian law regarding Omelianenko at the investigation stage for the preparatory court session.

Finally, in 2020, the case was transferred to the Sviatoshyn District Court of Kyiv. This also violated jurisdictional rules, as the trial should have taken place either where the alleged crime occurred or at the body that conducted the pre-trial investigation—in the Pechersk or Shevchenkivsky District Courts of Kyiv.

For more than four years, due to numerous violations during the pre-trial investigation, Omelyanenko's case has been stuck in preparatory proceedings.

At what stage did the idea of filing a complaint with the ECtHR arise?

When we saw that the number and brazenness of violations had crossed any acceptable limit, we realised that it was pointless to expect justice in Ukraine for this case.

As a result, Omelianenko, with the help of our bar association, appealed to the European Court of Human Rights (ECtHR). The complaint highlighted the main signs of lawlessness: the case was being investigated illegally, with all deadlines violated; he was detained unlawfully; and the preventive measures taken against him were illegal, among other issues.

Typically, one appeals to the European Court of Human Rights after exhausting options in the Ukrainian courts. However, in this instance, the violations of human rights were so blatant that the ECtHR decided to consider the case without waiting for a final verdict from the Ukrainian courts. 

Recognising the real signs of arbitrariness, the ECtHR conducted a comprehensive and impartial review of the case, including the state's objections. The ECtHR subsequently issued a decision against Ukraine, acknowledging that the actions of the law enforcement agencies against our client were illegal.

Such systemic violations of human rights make it nearly impossible to conduct regular business or live a peaceful life in Ukraine. How much longer will this continue? One year, two, five – it's a rhetorical question.

I'm curious, how often do court hearings on this case take place in Ukrainian courts?

This is yet another blatant violation of Omelianenko's rights, which the ECHR took into account. Due to the heavy workload of the courts, the case proceeds extremely slowly—only five sessions per year.

Ukrainian and international law both recognise the principle of continuity in judicial proceedings. Every individual, regardless of guilt, has the right to the prompt resolution of their case. However, with more than two months between sessions, this principle is clearly violated. This extended delay constitutes a form of psychological torture, leaving the accused in a state of uncertainty.

Ukrainian investigators even use a psychological tactic where they tell the suspect that their case will drag on in court for ten years, making the trial itself a form of punishment.

The delays also suggest that no one wants to be responsible for a case with such evident corruption and manipulation. Judges know that any guilty verdict can be appealed to higher courts, and the ECHR will scrutinise any violations. At the same time, an acquittal could mean going against the system and disappointing those who orchestrated the charges. 

This results in a closed loop of legal arbitrariness, which is difficult to break because the "system" could retaliate. This is the challenging environment in which we continue to fight against these violations.

Could you elaborate on how the system can influence judges?

All these mechanisms are well-documented in numerous investigations. You can easily find dozens of reports, complete with specific names and amounts, by renowned journalists and human rights defenders.

For instance, any local court judge knows that ignoring "friendly requests" from higher-ups means forfeiting any chance of career advancement, such as becoming a judge in a higher court. 

Judges who go against the system by closing dubious cases and disrupting corrupt schemes risk being sidelined. Such judges may find themselves stuck in local courts for years, despite their experience and qualifications for appellate positions. In some cases, they might even be framed or subjected to other forms of retaliation.

This systemic pressure severely impacts the quality of justice. Breaking this system is essential to building a prosperous country.

Will the decision of the ECtHR impact the Ukrainian courts in Omelianenko's case?

We genuinely hope that the ECHR's decision will have a significant impact. This decision is unprecedented, as the European Court of Human Rights usually makes its rulings ex post facto, after a person has been convicted and all national procedures have been exhausted. 

In this case, however, the ECHR has already identified a gross violation of the Convention on the Protection of Human Rights and Fundamental Freedoms at the preparatory proceedings stage.

This decision represents another international reprimand for our law enforcement system and Ukrainian justice. If the decision does not have the desired effect, we will exhaust all possible response options, including reaching out to human rights organisations in Ukraine and Europe, the European Parliament, and the European Commission on Human Rights.

The ECHR's decision is from the highest court and is binding on Ukrainian courts. Even the Ministry of Justice of Ukraine has recognised the violation of Omelianenko's rights and paid the compensation determined by the ECHR.

To avoid further dishonouring the already tarnished reputation of our country's law enforcement and judicial systems, the fabricated and biased court cases against Omelianenko must be halted immediately. Acting according to the law is straightforward, yet the situation in Ukraine remains unchanged. The decision of a respected European institution seems to hold little sway with Ukrainian Themis.

PAPER 1-

Finally, I would like to hear your opinion on the prospects for Ukraine's law enforcement and judicial spheres. Is there any hope that professionalism and independence from the authorities will become a reality?

We hope that this will happen, but it will only become a reality when the state genuinely commits to it. Certain changes are already underway. Some law enforcement officers and members of the judiciary are beginning to realise that illegal decisions and actions have a boomerang effect—they inevitably come back. 

Those who openly violated the law yesterday, condemning or fabricating cases against innocent people, often find themselves on trial tomorrow.

Is this a result of a conscious and planned state policy? I would like to believe so, but the work has just begun. Law enforcement is the fundamental basis of the state and a crucial condition for its stability and development. Without it, lawlessness will prevail, leading to social upheavals, revolutions, and unrest. Laws must be followed from start to finish—this is an axiom for any democratic state.

If we want to see Ukraine as a democratic, prosperous country, attracting investments from around the world and becoming a member of the European Union, we need to play by civilised rules and adhere to our laws, which are fully democratic and approved by European legislative bodies.

Especially now, as Ukraine fights desperately for its destiny and future, ensuring fair justice and a virtuous law enforcement system is critical to its sovereignty and survival. After our victory—and I have no doubt that we will achieve it—the corrupt will be held accountable, and it will be extremely difficult for them to hide behind the old protections.

I am confident that Ukraine will be accepted into the EU and NATO when the decisions of the ECtHR become an indisputable model for the Ukrainian justice system, a standard of legality and respect for rights. This will be the key indicator that positive changes have taken place and are here to stay.

Share this article: