Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Publicación cientíca en formato digital
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185
Depósito legal pp 197402ZU34
ppi 201502ZU4645
Vol.40 N° 75
2022
Recibido el 14/09/22 Aceptado el 22/11/22
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
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Co mi té Edi tor
Eduviges Morales Villalobos
Fabiola Tavares Duarte
Ma ría Eu ge nia Soto Hernández
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Carmen Pérez Baralt
Co mi té Ase sor
Pedro Bracho Grand
J. M. Del ga do Ocan do
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Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 40, Nº 75 (2022), 615-635
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Peculiarities of ensuring the
constitutional right to a fair trial:
international and national aspects
DOI: https://doi.org/10.46398/cuestpol.4075.37
Oleksandr Rogach *
Nataliya Shelever **
Mykhailo Herevych ***
Iryna Shulhan ****
Mariia Muzyka *****
Abstract
Using a documentary methodology combining dierent
research techniques such as dialectics, the article conducts a
scientic analysis of the implementation of the constitutional
right to a fair trial in Ukraine and denes its essence and content;
it also investigates the peculiarities of normative consolidation of
the right in international legal acts and studies the positive experience of
applying the precedent practice of the European Court of Human Rights, to
solve the main problems of the implementation of this right in the national
judiciary in the conditions of martial law in Ukraine. Among other things,
the essence of the term “right to a fair trial” was claried and a study of the
peculiarities of the implementation of the right to a fair trial in conditions
of war from the perspective of the European Court of Human Rights was
conducted. It is concluded that, both in theory and in concrete reality, the
right to a fair trial is complex in nature and includes the fairness and publicity
of the proceedings, the reasonableness of the terms, the presumption of
innocence, the independence and impartiality of the court, the existence of
a dispute over rights and obligations, among other aspects.
* Doctor of Legal Sciences, Professor, Vice-Rector for Academic Policy and Research, State University
«Uzhhorod National University», Uzhhorod, Ukraine, ORСID ID: https://orcid.org/0000-0001-5125-
288X
** PhD in Law, Associate Professor, Associate Professor of the Department of Administrative, Financial
and Informative Law, State University «Uzhhorod National University», Uzhhorod, Ukraine,
ORСID ID: https://orcid.org/0000-0003-3641-4910
*** Doctor of Philosophy, teacher of the Department of Theory and History of the State and Law, State
University «Uzhhorod National University», Uzhhorod, Ukraine, ORСID ID: https://orcid.org/0000-
0002-0842-2828
**** Candidate of legal science, Associate Professor, Associate Professor of the Department of Administrative
and Information Law, Lviv Polytechnic National University, Lviv, Ukraine, ORСID ID: https://orcid.
org/0000-0002-9623-3495
***** Candidate of legal science, Associate Professor, Associate Professor of the Department of Theory of
Law and Criminal Procedure Activity of National Academy, State Border Guard Service of Ukraine
named after Bohdan Khmelnytskyi, Khmelnytskyi, Ukraine, ORСID ID: https://orcid.org/0000-
0002-4933-7101
616
Oleksandr Rogach, Nataliya Shelever, Mykhailo Herevych, Iryna Shulhan y Mariia Muzyka
Peculiarities of ensuring the constitutional right to a fair trial: international and national aspects
Keywords: right to a fair trial; judiciary; European Court of Human
Rights; martial law; emergency legal regimes.
Estándares internacionales para procesos penales en
regímenes legales de emergencia
Resumen
Mediante una metodología documental que conjuga diferentes técnicas
de investigación como la dialéctica, el artículo realiza un análisis cientíco
de la implementación del derecho constitucional a un juicio justo en Ucrania
y dene su esencia y contenido; además, investiga las peculiaridades de la
consolidación normativa del derecho en los actos jurídicos internacionales y
estudia la experiencia positiva de aplicar la práctica precedente del Tribunal
Europeo de Derechos Humanos, para resolver los principales problemas
de la implementación de este derecho en el poder judicial nacional en las
condiciones de la ley marcial en Ucrania. Entre otras cosas, se aclaró la
esencia del término «derecho a un juicio justo» y se realizó un estudio
de las peculiaridades de la implementación del derecho a un juicio justo
en condiciones de guerra desde la perspectiva del Tribunal Europeo de
Derechos Humanos. Se concluye que, tanto en la teoría como en la realidad
concreta, el derecho a un juicio justo es de naturaleza compleja e incluye
la equidad y publicidad del proceso, la razonabilidad de los términos, la
presunción de inocencia, la independencia e imparcialidad del tribunal, la
existencia de un litigio sobre derechos y obligaciones, entre otros aspectos.
Palabras clave: derecho a un juicio justo; poder judicial; Tribunal
Europeo de Derechos Humanos; ley marcial; regímenes
legales de emergencia.
Introduction
The problem of justice, as a basic value, is one of the central ones
throughout the history of civilization, constitutional and legal science and
practice, and the right to a fair trial is one of the fundamental human rights
that the state must protect. The realization of this right enables citizens
to feel protected from any oenses, and the state to be considered truly
democratic and legal. Thus, in the case of “Holder v. Great Britain”, the
European Court of Human Rights (hereinafter - the ECHR) notes that the
very model of the right to a fair trial would be pathetic and meaningless
if this norm did not ensure the right to have your case considered at all
(Holder v. Great Britain. Decision No. 4451/70, 1975).
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However, the administration of justice in some countries sometimes
does not stand up to criticism, and due to a number of organizational,
technical, procedural, economic and other reasons of an objective and
subjective nature, the provisions on the justice of the court are declarative
and are often violated. This also applies to Ukraine, which is conrmed by
the annual increase in the number of applications to the ECHR regarding
violations of the right to a fair trial.
The formation of the constitutional-legal mechanism for the
implementation of European standards of the right to a fair trial to
the national legal system of Ukraine directly aects the problems of its
eectiveness. At the same time, it is worth emphasizing that the standards
of the ECHR, set out in its decisions regarding the guarantees enshrined in
Art. 6 of the European Convention on Human Rights is an implementation
measure that requires a series of actions, without which it is impossible
for Ukraine as a state party to fulll its obligations under the European
Convention on Human Rights, or to ensure fundamental rights and
freedoms in general.
One of the key issues of today’s Ukraine, on the territory of which martial
law has been introduced, is whether the modern national judicial system
is able to ensure the administration of justice and the right of citizens to
a fair trial, which is a fundamental and priority duty of the state, within
a reasonable time. Issues of access to justice and public hearings are also
important. In the conditions of special legal regimes, these aspects of the
right to a fair trial, unfortunately, are not always fully implemented, and
the state faces a number of problems, the complex solution of which is one
of the priority directions of a modern democratic society.
1. Methodology of the study
The set goal and tasks of the scientic article, its object and subject,
determined the methods and techniques of scientic knowledge, with the
help of which an objective study of the subject was achieved.
At each stage of the research, a set of general scientic and special
methods of scientic knowledge was used. Through the prism of the
dialectical method of scientic knowledge of legal processes and phenomena
and systematic analysis, a deepening of the conceptual apparatus was
ensured, the essence of the category «justice» and «right to a fair trial», the
interpretation of the ECHR of the violation of the right to a fair trial, conicts
and gaps in the legislation of Ukraine and in practice were investigated its
application, specic proposals for overcoming them are formulated.
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Peculiarities of ensuring the constitutional right to a fair trial: international and national aspects
The use of the system-structural method made it possible to investigate
the internal structure of the mechanism for the implementation of the right
to a fair trial in the national judiciary, to establish the relationship between
the constituent elements of this right. Comparative legal and analytical
methods are used to study the conventional and constitutional regulation
of the right to a fair trial, as well as in the process of comparing the norms of
international legal acts, the practice of the ECHR and national legislation.
With the help of the inductive method and scientic pluralism, proposals
were formulated to improve the domestic constitutional regulation of
the right to a fair trial in the context of the provisions of the Convention
and national legislation. The statistical method was used in summarizing
statistical data and practice materials on the implementation of the
researched law. The forecasting method was used during the development
and formulation of proposals aimed at improving national legislation and
the organization of the judiciary in terms of regulation and implementation
of the right to a fair trial.
A comprehensive approach and the use of all the above-mentioned
methods of scientic research provided reliable and objective results of
scientic work, and the methods used in connection and interdependence
made it possible to comprehensively consider the legal conceptual
foundations of fair justice in the world and at the national level, to reveal
their theoretical and practical signicance in legal science.
The normative and legal basis of the scientic article is composed of
provisions of the Constitution of Ukraine, international legal acts in the eld
of legal regulation of the right to a fair trial, national and foreign legislation,
precedent practice of the ECHR, relevant decisions of the Constitutional
Court of Ukraine.
The empirical basis of the study was the decisions of the ECHR concerning
the right to a fair trial, the interpretive acts of the higher courts of Ukraine,
which are placed in the Unied State Register of Court Decisions, and the
materials of judicial practice.
2. Analysis of recent research
The principle of justice as a phenomenon and category is the subject
of study in various sciences: philosophy, jurisprudence, ethics, political
science, sociology, cultural studies, and economics. From the doctrinal
positions of constitutional science, the importance of studying the issue of
justice in its relationship with law lies in the fact that it occupies a decisive
central place among the values that constitute the ontological basis of law
and are derived from such a legal phenomenon as human dignity.
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Justice, as a basic legal value, has a decisive role in the understanding of
law, the construction of its institutions, in the formulation of requirements
for the legal regulation of relations in modern society. It serves as a peculiar
tool of scientic analysis, ensures the organic unity of general theoretical
and branch sciences, its implementation in justice is one of the main
priorities in the conditions of building a legal state (Stepanov, 2018).
The problem of ensuring the constitutional right to a fair trial has a
multifaceted nature, which is why its consideration requires a comprehensive
comprehensive approach, the study of various aspects, and the eective
implementation of Art. 6 Convention on the protection of rights and
fundamental freedoms during war is extremely necessary, since courts are
obliged not only to restore the violated right in such conditions (Shelever,
2022), but the state - to ensure the comprehensive implementation of
justice, as a basic legal value society.
The right to a fair trial is the subject of research by many scholars.
Modern scientists such as V. Horodovenko, P. Guivan, U. Koruts, O.
Lemak, T. Lukash, O. Lyoshenko, A. Medvid, G. Nechiporuk, S. Stepanova,
S. Shevchuk and others devoted their works to this issue. However, a stable
and universally recognized approach to determining the legal nature of
the right to a fair trial among scientists and practitioners has not yet been
developed due to its multifaceted nature. In today’s conditions, one of
the main problems of an applied nature is the problem of interpretation
and application of precedent provisions of the European Court of Human
Rights.
Despite the fact that the quarantine and martial law introduced in
Ukraine, although they became an impetus for the digitization of justice,
the introduction of fundamentally new procedures aimed at protecting
the rights, freedoms and safety of the participants in the trial (Tatulych,
2022), at the same time, signicant restrictions on the rights of citizens and
negative the consequences of these phenomena encourage the development
of optimal ways of their protection in the realm of national justice.
The purpose of the article is a scientic analysis of the implementation
of the constitutional right to a fair trial in Ukraine, the determination of its
legal nature and the normative consolidation of the right in international
legal and national normative acts, the study of the positive experience of
applying the precedent practice of the ECHR in order to solve the main
problems of the practical implementation of the said right in the national
judiciary in the conditions of martial law in Ukraine.
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Oleksandr Rogach, Nataliya Shelever, Mykhailo Herevych, Iryna Shulhan y Mariia Muzyka
Peculiarities of ensuring the constitutional right to a fair trial: international and national aspects
3. Results and discussion
3.1. Doctrinal and legislative interpretation of the constitutional
right to a fair trial in Ukraine
The study of the right to a fair trial is an integral part of the theoretical
basis of the constitutional right to judicial protection, to an adversarial trial,
to a legal and fair resolution of a legal conict. The right to a fair trial is a
person’s right enshrined in Art. 6 of the Convention for the protection of
human rights, which guarantees the right to a fair and public trial within a
reasonable time by an independent and impartial court established by law
(Convention for the protection of human rights and fundamental freedoms,
1950).
The term «justice» is interpreted not only in its legal sense, but also
in its philosophical and aesthetic sense. In particular, according to the
etymological origin, «justice» means impartiality of actions, judgments,
recognition of someone’s rightness, dignity, retribution to everyone on legal
and honest grounds and, in general, compliance of human relations and
actions with generally recognized moral and legal norms.
Without delving into the scientic debate about the denitions of the
«right to a fair trial», we will take as a basis the interpretation of its essence
by T. Lukash, as an opportunity for a person (individual and/or collegial
entity), which is legally established, to protect in special state institutions
(judicial system bodies and bodies in the justice system) violated rights and
freedoms, the result of which is the actions of special state institutions to
restore the violated right and/or an individual’s ability to hold a position in
the bodies of the judicial system and bodies in the justice system (Lukash,
2020).
In general, the right to a fair trial is one of the fundamental human rights,
because if the legal construction of the specied provision does not apply,
then the rest of the human rights remain unprotected, which excludes the
guarantee of quality and impartial justice.
The right to a fair trial is guaranteed, in particular, by the provisions of
the Law of Ukraine «On the Judicial System and the Status of Judges». In
particular, in his art. 2 stipulates that the court, administering justice on
the principles of the rule of law, ensures everyone the right to a fair trial
and respect for other rights and freedoms guaranteed by the Constitution
and laws of Ukraine, as well as international treaties, the binding consent
of which was given by the Verkhovna Rada of Ukraine. Article 7 states
that everyone is guaranteed the protection of their rights, freedoms and
interests within a reasonable time by an independent, impartial and fair
court established by law (On Judiciary And Status Of Judges: Law of
Ukraine, 2016).
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O. Lyoshenko singles out two interrelated structural elements of the
right to a fair trial: 1) institutional and functional, which includes: access to
justice; independence and impartiality of the court; publicity and openness
of court proceedings; 2) procedural, which includes: reasonableness of
terms; adversarial nature of parties to criminal proceedings; appeal of
procedural decisions, actions or inaction (Lyoshenko, 2021).
T. Lukash proposed to consider the constitutional right to a fair trial as
a combination of two elements, namely: 1) the right to judicial protection,
which, in turn, consists of: a) the right to access to court or access to justice;
b) the right to a fair trial; c) the right to the strict execution of a court decision
and 2) the right to hold positions in the bodies of the judicial system and in
the bodies of the justice system (Lukash, 2020).
In our opinion, the provisions of Part 2 of the Law of Ukraine «On the
Judiciary and the Status of Judges». testify that in the context of the specied
regulatory legal document, the term «fair court» is used both in the context
of a requirement for the court as an institution (an independent, impartial,
fair court, established by law), and from the position of a requirement for
the procedure for the administration of justice (executing justice on the
principles of supremacy rights, ensures everyone the right to a fair trial).
From the above, it can be concluded that the essence of «trial justice»
is formed by the procedural and content components of justice. Procedural
justice consists in the implementation of judicial proceedings in accordance
with the procedural form dened by law, which in its essence meets the
requirements of justice. Substantive (material) justice is characterized by
the content of the decision made by the court (punishment determined by
it or application/non-application of other coercive measures).
In performing their functions of applying the law, courts often have
to carry out so-called judicial law-making related to the interpretation
of national law in accordance with European standards, that is, creative
activity, in particular, regarding the specication of norms on fundamental
rights and freedoms. And this kind of activity is mostly based on the doctrine
of judicial precedent, the content of which is the obligation for judicial
authorities to implement their previous decisions (Shevchuk, 2007).
Along with the normative acts of the legislation, the law also included
the judicial precedent in the part of the decisions of the ECHR in the
application of procedural legal norms to the sources of Ukrainian procedural
law. Individual court statements and remarks, which in themselves do not
create a precedent (in the classical sense), nevertheless, given the authority
of the court that adopted them, signicantly inuence the practice of other
courts (Popov, 2010).
Actually, individual guarantees provided by the ECHR’s application of
the principle of legal certainty have the meaning of obiter dictum (obiter
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Oleksandr Rogach, Nataliya Shelever, Mykhailo Herevych, Iryna Shulhan y Mariia Muzyka
Peculiarities of ensuring the constitutional right to a fair trial: international and national aspects
or dicta in abbreviated version). Thus, judicial precedent, from the point of
view of legal nature, is «a decision on a specic case, which is binding for
courts of the same or lower instance when deciding similar cases or serves
as a model of interpretation of the law, which do not have binding force»
(David and Jore-Spinoza, 1999: 31).
Applying judicial precedent as a way of regulating relations, the ECHR
achieves certainty in the legal resolution of disputes by rendering decisions,
the content of which (the motivational part) either does not coincide with the
current legislation, or refers to those moments that were not foreseen when
the laws were adopted. This is the peculiarity of the concept of European
judicial law or the European judicial model (Koruts, 2015). Decisions of
the ECHR, on the basis of which the interpretation and practice of applying
the provisions of the Convention for the protection of human rights are
provided, are a form of precedent law that expands its normative scope by
establishing new universally binding rules.
Based on this, we share the point of view of S. Stepanova, that taking into
account the subsidiary nature of the Convention for the protection of human
rights, which is that the protection of the rights and freedoms guaranteed
by this document must be carried out primarily at the national level, a
key feature of the eectiveness of the judicial system is the adaptation of
national standards to the standards of the ECHR in the context of precedent
practice of the ECHR (Stepanova, 2018).
It should be emphasized that the structure of the right to a fair trial,
provided for in clause 1 of Art. 6 of the Convention for the protection of
human rights, not fully dened element by element. Therefore, precisely
as a result of precedent developments and interpretation of the provisions
of the specied norm, the content of not only the specied elements, but
also those that are not prescribed in the relevant article, but are suciently
signicant in revealing the essence of the law, is revealed. So, along with
such categories as publicity of the trial, impartiality of the court, reasonable
terms of the trial, such unnamed elements as legal certainty, reasonableness
of the trial, determination of jurisdiction acquire the importance of the
principles of law.
Part of the specied guarantees, which constitute the content of the
right to a fair trial, in Art. 6 of the Convention for the protection of human
rights is not mentioned, but they are developed and interpreted by the
precedent practice of the ECHR, without applying the decisions of which
it is impossible to dene unambiguously and outline the meaning of the
specied terms.
Therefore, in addition to solving specic cases, the purpose of the ECHR
is much broader and consists in ensuring that states comply with the
provisions of the Convention for the protection of human rights, eliminating
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systemic deciencies that underlie the violations identied by the ECHR,
eliminating grounds for new applications to be submitted to it by bringing
national legislation to European criteria, adjustment of law enforcement
practice, etc. (Guivan, 2019).
The national legislation tries to incorporate these principles into the
Ukrainian legal system. In particular, Article 17 of the Law of Ukraine «On
the Implementation of Decisions and Application of the Practice of the
European Court of Human Rights» indicates the need for courts to apply
the ECHR and the practice of the ECHR as a source of law, and Art. 18
of this Law determines the procedure for referring to the Convention and
the practice of the Court (Law of Ukraine, 2006). As we can see, the Law
refers specically to the «practice of the Court» in its general sense, and
the dening principle of a fair court is the opportunity to receive fair justice
regardless of which social group a person belongs to or other personal
characteristics (Horodovenko, 2012).
Summarizing the specied part of the scientic article, we note that
in view of the importance of justice, as one of the fundamental values,
which is lled with content in the law and determines its value essence
as a whole, as well as the meaning of justice for the conceptual idea of
ensuring legal foundations in a court decision, we consider it expedient to
make appropriate changes to the wording of Art. 129 of the Constitution
of Ukraine, enshrining in it the principle of justice as fundamental in the
administration of justice.
The introduction of appropriate amendments to the Basic Law of Ukraine
will enable national courts in the most dicult cases to apply justice or to
restore justice violated when the relevant regulatory act was adopted. We
also see the expediency of making appropriate changes to all procedural
codes of Ukraine, providing in them the principle of justice as one of the
general principles of proceedings.
As you know, a fair trial is a world heritage as a manifestation of honest
and impartial timely consideration of each person’s case. In the Ukrainian
legal system, there is still an insucient awareness of judges with the basic
principles of a fair trial in the sense of the Convention for the protection
of human rights and the decisions of the ECHR. Even when applying the
precedent practice of the ECHR, the courts do not always clearly and
unambiguously understand the legal content of the application of the
relevant provisions.
We see one of the ways to solve this issue in increasing the level of
responsibility of judges and introducing their systematic training. This
issue has become especially relevant in the conditions of martial law in
Ukraine, when numerous changes are made to specic and other laws, the
consequence of which is a change in law enforcement practice, in particular,
in terms of the organization and implementation of judicial proceedings.
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Peculiarities of ensuring the constitutional right to a fair trial: international and national aspects
3.2. Implementation of individual provisions of a person’s right
to a fair trial in Ukraine
Along with other legal institutions, the judicial branch of government
in Ukraine has been aected by the war, which has made adjustments to
the process of administration of justice, and the domestic judicial system
remains understaed and morally depressed. The main reason for this state
of aairs is, rst and foremost, the incompleteness and controversy of the
reformation processes in the sphere of administration of justice.
According to the latest data, since the beginning of the full-scale armed
Russian aggression, more than 70 judicial institutions have suered damage
of varying degrees up to their complete destruction. The damage caused
by the destruction of the premises of judicial authorities is estimated at
billions of hryvnias (Ognevyuk, 2022). However, even under martial law,
a person’s constitutional right to judicial protection cannot be limited
(Tatulych, 2022).
As the Constitutional Court of Ukraine notes, no one can be limited
in the right to access to justice, which includes the ability of a person to
initiate a court proceeding and take direct part in the legal process, or be
deprived of such a right (paragraph seven of subparagraph 2.2 of point 2 of
the motivational part of the Decision of the Constitutional Court of Ukraine
in the case of the constitutional appeal of citizen Troyan Anton Pavlovich
regarding the ocial interpretation of the provisions of Article 24 of the
Constitution of Ukraine dated April 12, 2012 No. 9-рп/2012 (Decision Of
The Constitutional Court Of Ukraine, 2012).
Adequate awareness of the participants in the court process about court
decisions, court hearings, and information about cases under consideration
by the court is a necessary prerequisite for the realization of the right to
access to justice. It is obvious that under the conditions of mass movement
of citizens to other places of stay and limited possibilities of the postal
operator to deliver correspondence in the conditions of martial law, the
administration of justice by the courts in general and the right of access to
justice of specic citizens in particular are endangered (Medvedev, 2022).
According to Art. 26 of the Law of Ukraine «On the Legal Regime of
Martial Law» shortening or speeding up any forms of judicial proceedings
under martial law is prohibited (Law of Ukraine, 2006). However, it is not
always possible to ensure the continuous operation of the court during the
war, and some courts do not conduct justice at all, since according to the
Supreme Court of Ukraine, 20% of the courts were under occupation or in
the war zone (Tatulych, 2022).
In the case «Andrenko v. Ukraine» (ECHR Decision No. 50138/07,
2011), the ECHR came to the conclusion that the main responsibility for
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the excessive duration of the proceedings in this case lies with the state
bodies in connection with the violation of Article 1. 6 of the Constitution of
Ukraine. The behavior of the parties does not exempt the respondent state
from responsibility, since the organization of the proceedings must be done
in such a way that it is fast and ecient, which is the task of national courts
(9, paragraph 43).
In the conditions of martial law, the courts continue to work in the
territory controlled by Ukraine, because in accordance with Art. 10 of the
Law of Ukraine «On the Legal Regime of Martial Law» during the period of
martial law, the powers of the courts cannot be suspended. And according
to Art. 12-2 of this Law, in the conditions of the legal regime of martial law,
courts act exclusively on the basis, within the limits of their powers and
in the manner determined by the Constitution of Ukraine and the laws of
Ukraine, and their powers are provided for by the Constitution of Ukraine,
in the conditions of the legal regime of martial law, they cannot be limited
(Law of Ukraine, 2006).
At the level of the Basic Law of Ukraine (Article 124), it is established that
justice in Ukraine is exclusively carried out by courts, and the delegation of
court functions, as well as the appropriation of these functions by other
bodies or ocials, are not allowed (Constitution Of Ukraine, 1996). These
regulations oblige the courts to work and administer justice even under
the conditions of an extraordinary legal regime. At the same time, the
new conditions make it necessary for the state to take decisions aimed at
ensuring the proper performance by the courts of the functions assigned
to them.
In order to settle this issue, the Council of Judges of Ukraine adopted
a number of important and relevant decisions «Regarding the adoption of
urgent measures to ensure the stable functioning of the judiciary in Ukraine
in the conditions of the termination of the powers of the Ukrainian People’s
Liberation Army and martial law in connection with armed aggression by
the Russian Federation» 24.02.2022 (Decision of the Council of Judges of
Ukraine, 2022). In particular, it published recommendations on the work
of courts under martial law, the main ones of which are as follows:
1. to postpone the consideration of the case (with the exception of
urgent court proceedings) and remove them from consideration,
since a large number of participants in court proceedings are not
always able to submit an application for postponement of the
consideration cases cannot come to court due to danger to life;
2. cases that are not urgent should be considered only with the written
consent of all participants in the court proceedings;
3. to explain to citizens the possibility of postponing the consideration
of cases in connection with military actions and the possibility of
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Oleksandr Rogach, Nataliya Shelever, Mykhailo Herevych, Iryna Shulhan y Mariia Muzyka
Peculiarities of ensuring the constitutional right to a fair trial: international and national aspects
considering cases in the mode of video conference; for this, the
participants in the case must declare their participation in the court
session via video conference. In case of impossibility to participate
in the court session, it is recommended to submit a petition to the
court for:
• postponing the consideration of the case and consideration of
the case with the participation of a representative;
• participation in a court session via video conference (Decision
of the Council of Judges of Ukraine, 2022). It is possible to
send relevant petitions to the court by mail or through the
«Electronic Court» system.
The implementation of European standards of the right to a fair trial
in Ukraine is reduced not only to the law-making activity of the state in
the person of its bodies on the adoption of the norms of European law by
domestic legislation, but also involves the implementation of a complex
of systemic measures of a law enforcement nature, which ensure the
actual implementation of the prescriptions of international legal norms.
In this sense, when talking about the observance of judicial principles
that correspond to the practice of the ECHR, special attention should be
paid to the organizational and technical issues of changing the territorial
jurisdiction of cases, observing reasonable investigation deadlines, as well
as remote participation in court hearings.
• Change of territorial jurisdiction of cases
For the normal provision of the right to access to justice as a component
of the right to a fair trial, such elements as procedural and physical
possibilities of applying to the court are necessary. In its decisions, the
ECHR has repeatedly emphasized that the right of access to the court cannot
be considered as something absolute. Thus, in the decision «De Geore de
la Pradelle v. France» (Geoure de la Pradelle v. France), dated December
16, 1992, the ECHR stated that «the right to go to court may be limited, but
these limitations must not complicate or limit the access of a person so or
to such an extent that it damages the very essence of this right» (Geoure
de la Pradelle v. France. Decision, 1992).
In turn, in the Ashingdean v. United Kingdom decision of May 28, 1985,
the ECHR stated that any restrictions on access to the court are under the
control of the ECHR, which checks whether such state intervention pursued
a legitimate aim and whether it is proportionate and necessary in a legal and
democratic state between the measures taken and the goal set (Ashingdane
v. United Kingdom. Decision, 1985). However, these restrictions should
not, however, interfere with the exercise of the right to access to justice in
such a way or to such an extent that the very essence of this right is violated.
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The adopted Law of Ukraine «On Amendments to the Law of Ukraine
«On the Judiciary and the Status of Judges» stipulates that in connection
with a natural disaster, military operations, measures to combat terrorism
or other extraordinary circumstances, the work of the court may be
suspended with the simultaneous determination of another the court
that will administer justice on the territory of the court that has ceased
operations and that is territorially closest to the court whose work has been
terminated (Law of Ukraine, 2022).
As a result of the full-scale invasion of the Russian Federation on the
territory of Ukraine, the conduct of active hostilities and the temporary
occupation of certain territories, a number of courts by the relevant
orders of the Chairman of the Supreme Court «On changing the territorial
jurisdiction of court cases under martial law», taking into account the
impossibility of courts to administer justice during martial law, territorial
jurisdiction the court cases considered in these courts were changed.
The implementation of such powers became possible thanks to the
adopted changes to the wording of Part 7 of Article 147 of the Law of
Ukraine «On the Judiciary and the Status of Judges», according to which
in the event of the impossibility of administering justice by a court for
objective reasons during a state of war or emergency, in connection with
a natural disaster, military operations, measures to combat terrorism or
other in extraordinary circumstances, the territorial jurisdiction of court
cases considered in such a court may be changed by a decision of the High
Council of Justice, which is adopted at the request of the Chairman of the
Supreme Court, by transferring it to the court that is territorially closest to
the court that cannot administer justice, or another specied court.
In the event that the High Council of Justice is unable to exercise such
authority, it is exercised by order of the Chairman of the Supreme Court.
The corresponding decision is also the basis for the transfer of all cases
pending before the court whose territorial jurisdiction changes (Law of
Ukraine, 2016).
The resumption of work in some courts, in particular in the de-occupied
territories of Ukraine, is accompanied by a large number of organizational
and technical problems, because a signicant number of court premises
were damaged or completely destroyed, and computer equipment and
other material assets were stolen. Therefore, regardless of the fact that
the court that was supposed to consider the case has ceased its activity,
the consideration of the case should be carried out by another court that is
territorially closest. Information on the change of territorial jurisdiction of
court cases can be found directly on the website of a particular court.
On February 26, 2022, the Verkhovna Rada of Ukraine registered a draft
law on amendments to the Code of Administrative Procedure of Ukraine,
628
Oleksandr Rogach, Nataliya Shelever, Mykhailo Herevych, Iryna Shulhan y Mariia Muzyka
Peculiarities of ensuring the constitutional right to a fair trial: international and national aspects
the Civil Procedure Code of Ukraine, and the Economic Procedure Code of
Ukraine (regarding the implementation of judicial procedures in conditions
of martial law or a state of emergency) No. 7316, which provides: during
the period of martial law whether a state of emergency provides for the
possibility of remote work of the secretary and the granting of his powers
to other employees of the court apparatus; features of court summonses
and notices during the period of martial law or state of emergency; that
the preliminary proceedings and/or trial must be conducted within a
reasonable time, taking into account the possibility of the parties to the
case to participate in the proceedings; to expand the scope of application
of written proceedings in courts of all jurisdictions; to extend the features
of consideration of court cases, which were applied in connection with the
introduction of quarantine due to COVID-19, also to the period of martial
law or state of emergency; peculiarities of serving a copy of a court decision
during the period of martial law or state of emergency (Project Law No.
7316, 2022).
• Procedural terms
One of the elements of the requirements of Art. 6 of the Constitution of
Ukraine there is a requirement that the case must be considered within a
reasonable time. Its improper application in Ukraine is also recorded in the
practice of the ECHR, which has repeatedly established a violation of Clause
1 of Art. 6 of the Constitution of Ukraine in cases related to temporal issues
of unreasonableness of judicial terms, namely: «Vashchenko v. Ukraine»
(paragraph 50), «Popilin v. Ukraine» (paragraphs 24–31), «Pavlyulynets v.
Ukraine» (paragraph 53).
Also, the analysis of the practice of the ECHR proves that when
determining the reasonableness of the trial period, not only such criteria as
the importance of the case for the applicant, the complexity of the case, the
behavior of the parties, the number of stages of the proceedings, but also
the peculiarities of the political or social situation in the state, etc. are taken
into account» (Tregubov, 2010).
Martial law does not aect the course of procedural terms, but may be a
valid reason for renewing or extending the procedural term; the procedural
term established by the court is not subject to renewal, but can only be
extended at the request of the party to the dispute; during the period of
martial law, the general and special statute of limitations provided for by
the norms of civil and economic legislation are extended.
Undoubtedly, the introduction of martial law made it impossible for
many people to submit the relevant documents to judicial institutions on
time. If at the beginning of the war it was popular to think that martial law
is a valid reason for recognizing the reasons for missing procedural terms
629
CUESTIONES POLÍTICAS
Vol. 40 Nº 75 (2022): 615-635
as valid, now every court is based on the current situation in the respective
region (Chernilevska, 2022).
One should not forget about the discretionary powers of the court and
the absence of a general rule that martial law is a valid reason for extending
the terms, therefore one should not neglect the dened procedural terms.
At the same time, it is necessary to realistically assess each specic situation
and respond to it promptly and advocated.
Of course, the format of the activity of courts and judges has undergone
changes, adapted to the peculiarities of the legal regime caused by the martial
law, but under such, even temporary conditions, judicial proceedings must
be carried out in all cases and cannot be suspended in order to prevent the
limitation of a person’s constitutional right to judicial protection.
• Remote participation in the court session
Provisions regarding the administration of justice in a specially equipped
room - a courtroom are contained in every procedural law. This places an
obligation on judges and court sta who, being faithful to their oath and
acting in accordance with the Constitution, are physically present at their
workplaces so that justice continues to be administered.
Under such conditions, a completely logical question arises among
scientists and law enforcement ocers: Is the condition that obliges judges
and court employees to be physically present in court adequate during
martial law, chronic underfunding, and a colossal personnel crisis? After
all, if every participant in the case can fully exercise his right to participate
in the video conference mode, being in a safe place, then why expose court
employees to danger and force them to go to work under the enemy’s
crosshairs (Ognevyuk, 2022)?
The only adequate and balanced solution to these problems is the
introduction of remote justice in Ukraine, which gained popularity in the
world during the coronavirus pandemic. Of course, for remote hearings,
people must be able to prove their identity if they are not physically present
in court. For this, countries allowed the use of electronic signatures, making
changes, in particular, to the criminal and civil procedural codes (Ognevyuk,
2022).
The issue of providing the possibility of remote justice gained wide
popularity in 2022 due to the spread of the coronavirus pandemic. Countries
where video conferencing is used in civil and criminal proceedings include:
United States of America, United Kingdom, Austria, Sweden, Ireland,
Croatia, Hungary, Kazakhstan, Portugal, Serbia, Slovenia, France (hearings
also take place by telephone), North Macedonia (only during the state of
emergency).
630
Oleksandr Rogach, Nataliya Shelever, Mykhailo Herevych, Iryna Shulhan y Mariia Muzyka
Peculiarities of ensuring the constitutional right to a fair trial: international and national aspects
In 2020, the Verkhovna Rada of Ukraine adopted laws that made it
possible for litigants to exercise their right to participate in court hearings
remotely, thus exercising their right to a fair trial. Instead, the State
Judicial Administration of Ukraine has developed a procedure for video
conferencing during the court session with the participation of the parties
outside the court premises.
This format of holding court hearings helped to normalize the
administration of justice in quarantine conditions. However, practice
conrms that the conditions of martial law prevent the realization of the
rights of individuals to have their case heard by a court, even in this way,
due to the risk of becoming a target of chaotic shelling and bombing.
We believe that the problem of interrupting court sessions in connection
with frequent cases of air alert announcements needs to be further worked
out and resolved, taking into account the imperative principles of judicial
proceedings and the need to ensure the safety of court session participants
and other court employees. Further steps to expand the possibilities of
remote judicial proceedings also require a technical and regulatory basis
in order to ensure the possibility for participants in the proceedings and
judges to participate in court sessions remotely.
While the expansion of the use of online court proceedings is pending, it
is worth actively using the resources of the «Electronic Court» subsystem,
which, after registering in their own electronic account, allows the
participants in the case and their representatives to submit documents
to the court, receive documents, get acquainted with case materials, etc.
However, there are reasons that today, mostly for objective reasons, not all
Ukrainian courts have joined the «Electronic Court» subsystem, and this,
in turn, slows down the full use of the capabilities and resources of this
subsystem and encourages the use of alternative ways of participating in
adversarial litigation.
The situation that has developed in Ukraine today requires quick and
decisive steps to establish the participants’ access to the court, without
excessive formalism, which will harm the authority of the judiciary, which
must protect the interests of citizens under any conditions. Necessary and
at the same time comfortable conditions for high-quality and eective
resolution of the dispute must be created for the participants in the legal
process. For this purpose, it is necessary to ensure the successful and
balanced application of the legislation, which, of course, will require the
appropriate technical support of the courts.
All the elements considered in the specied part of the article (territorial
jurisdiction of cases, compliance with reasonable investigation deadlines,
remote court proceedings) are integral components of the right to a fair trial
within the meaning of Part 1 of Article 6 European Convention on human
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Vol. 40 Nº 75 (2022): 615-635
rights and serve as guarantees established by the European Convention on
human rights and the practice of the ECHR as the most eective regional
international human rights protection system at the moment (Lemak,
2014).
At the same time, analyzing the current state of the practice of national
implementation of the European Convention on Human Rights, as well
as the precedent practice of the ECHR in modern conditions, we can
characterize the latter as not yet systematic, and the mechanism of appeal
to the precedent practice of the ECHR is still undeveloped. In this context,
as well as taking into account the legislative, organizational and economic
diculties caused by the state of war on the territory of Ukraine, we
consider it appropriate to provide advisory clarications of higher judicial
institutions on the issues of forming approaches to the application of the
practice of the ECHR in conditions of emergency legal regimes.
Conclusions
Justice is one of the fundamental values, which is lled with content in
the law, determines the value nature of the law as a whole and is of essential
importance for the idea of ensuring legal foundations in a court decision.
In view of this, Art. 129 of the Constitution of Ukraine, which enshrines the
basic principles of the judiciary, should be supplemented with a provision
on the principle of justice, as fundamental in the administration of justice.
The introduction of appropriate legislative changes to the Basic Law
and to the criminal procedural codes will help in the most dicult cases
(primarily, in the conditions of a special legal regime) to carry out judicial
proceedings, based on the fundamental principle of justice, established at
the constitutional and branch level.
The right to a fair trial is one of the elements of the rule of law and a
fundamental right of every person, enshrined in national legislation and
in the provisions of the European Convention on human rights, which are
claried and detailed in the decisions of the ECHR. Based on the provisions
of Art. 6 of the European Convention on human rights and the practices
of the ECHR, the state must ensure guarantees for every person regarding
access to justice, which will be fair and legal, and the independence and
objectivity of the court is a signicant sign of the rule of law and the justice
of the court. However, even in spite of this, in the conditions of judicial
reform and the martial law introduced in Ukraine, there are not enough
legal means of its implementation at the legislative level, which prompts
the improvement of national legislation in terms of developing eective
mechanisms for the implementation by a person of the fundamental
principle of access to justice.
632
Oleksandr Rogach, Nataliya Shelever, Mykhailo Herevych, Iryna Shulhan y Mariia Muzyka
Peculiarities of ensuring the constitutional right to a fair trial: international and national aspects
The right to a fair trial is complex in nature and includes fairness and
publicity of the proceedings, reasonableness of terms, presumption of
innocence, independence and impartiality of the court, existence of a
dispute regarding rights and obligations, etc. Such elements of the right
to a fair trial, such as territorial jurisdiction of cases, compliance with
reasonable investigation deadlines, remote court proceedings in the
conditions of martial law introduced in Ukraine, require an immediate and
at the same time comprehensive approach in order to create the necessary
and at the same time comfortable conditions for a high-quality and eective
resolution of the dispute, ensuring continuous functioning of the judicial
system.
In this case, the following should be identied as priorities: provision
of advisory clarications of higher judicial institutions on issues of forming
approaches to the application of the practice of the ECHR in conditions
of emergency legal regimes; introducing systematic training of judges and
increasing their level of responsibility; proper organizational and technical
support of courts.
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Esta revista fue editada en formato digital y publicada
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Vol.40 Nº 75
