Summary: 1. Introduction. – 2. The Significance of the Convention as an Instrument of the European Public Order. – 3. ECHR and the Practice of the ECtHR as a Guide for the Reformation of Criminal Justice in Ukraine. – 3.1. The Principles of Criminal Proceedings: Freedom from Self-disclosure and the Right not to Testify against Close Relatives and Family Members; Immediacy of Testimonies, Objects and Documents Examination; Presumption of Innocence, Ensuring the Right to Defence and Their Implementation in the New CrPC of Ukraine 2012. – 3.2. Obligations of Ukraine Regarding the Creation of a System of Free Legal Aid. – 3.3. Positive Legislative Reaction of Ukraine to the Recommendations Made by the ECtHR Regarding the Standardisation of Measures to Ensure Criminal Proceedings and Precautionary Measures. – 3.4. Problems of Admissibility of Evidence and Ensuring the Rights of Individuals to Review the Materials of the Pre-trial Investigation. – 4. ECHR as a Living Instrument and Act of Direct Action. – 5. Reserves for the Improvement of National Legislation in the Context of Protection of Human Rights and Freedoms in Accordance with the Legal Positions of the ECtHR. – 6. Conclusions
As of 2020, 70 years have passed since the day of the adoption of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which Ukraine ratified in September 1997. It was from this date that the countdown to significant democratic transformations in Ukraine and the establishment of human and civil rights and freedoms began. In this article, the authors raise relevant issues of reforming the criminal process of Ukraine in the context of European standards. The old Code of Criminal Procedure of Ukraine was adopted in 1960 and was in force for almost half a century. During this time, it became obsolete and bore a significant imprint of the Soviet past, which was manifest in both the bodies that conducted the trial and had primarily repressive powers and the public interests that dominated the rights and legitimate interests of those involved in criminal justice.
The conditions under which the first steps aimed at realising the importance of the Convention and the value of human rights enshrined in it took place were not easy. The path of reform processes in criminal proceedings was associated with the confrontation of the Soviet past with modern transformation. It was difficult to realise the need to harmonise national legislation with European standards of human rights and freedoms and consolidate their perception as one of the necessary conditions for Ukraine’s integration into the European legal space, as well as the need for a conceptually new worldview for both the people of Ukraine and law enforcement bodies – officers, judges, and prosecutors.
The authors summarise the most important decisions of the ECtHR made on complaints against Ukraine during the period of the reform of criminal procedure legislation, analyse the problems identified by the ECtHR, and illustrate how the legislator implemented the ECtHR standards in national criminal procedure legislation. They note that on the basis of the Convention and the case-law of the ECtHR in criminal procedure legislation, important principles of criminal proceedings, such as adversarial proceedings, direct examination of evidence, the right to defence, the right not to testify against oneself and close relatives, and reasonable time are legitimised. For the first time, the legislation of Ukraine has enshrined a rule on the inadmissibility of evidence obtained as a result of a significant violation of human rights and freedoms. A separate segment of the article is devoted to the consideration of amendments to the criminal procedure legislation regarding the protection of the rights and legitimate interests of a person in respect of whom a measure of restraint in the form of custody is chosen. In order to ensure the right of a person to liberty and security, the position of an investigating judge and the institute of free legal aid have been introduced. In addition, the authors focus on the aspects of direct application of the Convention and ECtHR decisions in law enforcement practice without amending the legislation, as well as analyse the legislative perspectives arising from non-implemented ECtHR decisions