On October 19, 2015, the Ukrainian news media published sounding headlines about Viktor Yanukovych and his application filed in the European Court of Human Rights (ECtHR). According to information announced by the British litigation law firm Joseph Hage Aaronson LLP, which represents the former president of Ukraine in the European Court, Viktor Yanukovych complained that the State violated his right to a fair trial (Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, hereinafter, the “Convention”); the right to life, namely violation of the procedural aspect of this right, which according to the British attorneys comprised violation of his right to effective investigation of assassination attempt (Article 2 of the Convention); and the right not to be discriminated against because of his political status and opinions (Article 14 of the Convention). In my opinion, the main complaint on the list is related to violation of his right to a fair trial as a result of being subjected to conviction in absentia.
At this stage of consideration of the appeal of Viktor Yanukovych in the European Court, this news means that the attorneys representing his interests in the ECtHR prepared the application that is consistent with all criteria of the Rules of Court. That is, the appeal was admitted to the Central post office of the Court (which daily receives about 1,500 letters), the appeal was given the number (507744/15), and then a lawyer with knowledge of Ukrainian legislation began its review. It does not mean that the Court accepted the appeal for consideration. At this stage, the Court, in theory, may request the representatives of the former president to provide additional information after which the application will be referred to one of the compositions of the Court, which will decide on its admissibility or inadmissibility.
Sure, it is impossible to read the text of the appeal, so I dare to suggest that the complaints of Viktor Yanukovych to violation in relation of him of Article 6 of the Convention are inseparably connected with five criminal proceedings initiated against him on the facts of involvement in crimes during the Maidan (organization of abuse of authority by law enforcement officers, which resulted in serious consequences, including loss of life); creation of a criminal organization; misappropriation of Sukholuchchya forests and buildings with the land of Mezhyhiria residence; misappropriation of budgetary funds for the creation of a special telecommunication line for public authorities.
As previously reported in the media, on July 28 the Prosecutor General Viktor Shokin announced initiation of the procedure of conviction of Yanukovych in absentia. He informed that on July 27 the Pecherskyi District Court of Kyiv declared validity of arguments and evidence provided by the GPO’s employees and initiated the procedure of conviction in absentia of the fugitive ex-president. Later defense of Yanukovych appealed against the decision of the Prosecutor General’s Office on pre-trial investigation in absentia, but on August 11, the Kyiv Court of Appeal dismissed the appeal of Yanukovych’s attorneys to the said the decision of the GPU.
Does such procedure in absentia violate Viktor Yanukovych’s right to a fair trial pursuant to Article 6 of the Convention and case law of the ECtHR?
Traditionally, in absentia procedures inevitably require some departure from the general rules of criminal procedure. Particular importance is given to ensuring the rights of the missing the defendant. The case law of the European Court developed criteria to be met in absentia proceedings in criminal cases. Ensuring procedural rights and guarantees of persons involved in criminal proceedings is essential. Violation of the provisions of the Convention in the course of investigation and trial in criminal proceedings can in future lead to revision of court decisions that entered into force in view of new circumstances.
The rights subject to unconditional compliance primarily include: the right to be present at the proceedings, the right to counsel, the right to be heard, the right to appeal the verdict in absentia.
Thus, in Judgment approved in “Da Luz Domingues Ferreira v. Belgium” the ECtHR noted that if the trial takes place in the absence of the defendant, it is not in itself a violation of Article 6 of the Convention. Thereto, in “Medenica v. Switzerland”, the European Court noted that the existence of criminal proceedings in absentia is beyond exception provided that the guarantees ensuring human rights enshrined by the Convention are observed.
Obviously, in most cases criminal proceedings in absentia are conducted contrary to the defendant’s consent. It can be carried also when he refuses to appear in court regardless of its location, and when he is in a foreign country. Criminal proceedings in absentia against the person, whose refusal to participate in the court hearing has not been proved are in principle possible, but only when the person is subsequently granted the right to judicial re-examination.
Thus, in “Einhorn v. France” (Judgment of October 16, 2004, application No. 71555/01) the European Court also pointed out that the criminal proceedings in absentia, in principle, does not contradict the provisions of the Convention, however, provided that a person convicted in absentia, is subsequently granted the right to judicial re-examination of accusations brought against him as part of which both the questions of fact and the questions of law should be examined.
Accordingly, the Pecherskyi District Court before approving the ruling of July 27 on consideration of the criminal case in the absence of Yanukovych had to find out whether he refused the presence in the courtroom. Based on the findings of the European Court, the Pecherskyi District Court had to define whether the former president knew that a criminal case was considered against him, which would inevitably involve the study of the EctHR of measures to notify him of the last hearing.
Of key importance in this case is notification of the person of initiation of criminal proceeding against him, which should be conducted in accordance with the procedural and material rules guaranteeing the effective exercise of his rights, though vague and unofficial information is insufficient (case of “Seydovich v. Italy”). The notification must be made officially, and allegation of notification from the letters of relatives (case of“T. v. Italy”), or by the media professionals (case of “Somogyi v. Italy”) are groundless.
Nevertheless, the European Court considers that in some cases, despite the lack of formal notification of the person concerned, it can be argued that the defendant deliberately evades the presence in court. Following the conclusions of the ECtHR in the case of “Seydovich v. Italy”, the situation may be the case, in particular when the defendant publicly or in a written form declares that he does not intend to respond to a summons to appear in court, which did not come from authorities, but from other sources, or when the defendant managed to avoid arrest.
At the same time, public authorities have the right to take measures to prevent the unjustified refusals of the defendants of the right to be present in the hearing (case of “Van Geyseghem v. Belgium”). It seems significant in the case law of the European Court to find a compromise between the sanctions imposed by the legislator with regard to the defendant, who has not appeared in the court, and his procedural rights guaranteeing a fair trial.
In such cases the European Court separately examines both the measures taken by the authorities to prevent refusal of presence at the case hearing and in general the possibility of the authorities to take any measures.
In addition, the defendant, who did not appear in the courtroom, under no circumstances may be deprived of the right to defense by the attorney of his own choosing.
In any case, whatever measures the authorities take to ensure the proper appearance of the defendant, they have no right to use disproportionate means to achieve this goal. On the contrary, if all the above requirements were met by the representatives of the state, the European Court would have no grounds for stating violation of the criminal aspect of Article 6 of the Convention in the case of “Yanukovych v. Ukraine”.