Published on 4 December 2023

FIFTH SECTION

Applications nos. 8838/20 and 15014/21 Sergey Vladimirovich ALAKHVERDYAN against Ukraine and Mykola Fedorovych SIYANKO against Ukraine lodged on 31 January 2020 and 9 March 2021 respectively communicated on 13 November 2023

SUBJECT MATTER OF THE CASE

The applications concern the alleged unfairness of the proceedings before the Supreme Court for review of the applicants’ convictions based on the Court’s findings in their previous case.

Application no. 8838/20

By judgments of 6 April 2019 and 9 February 2020 the Court found violations of Article 6 § 1 and 3 (c) of the Convention in the applicants’ cases ( Alakhverdyan v. Ukraine (Committee), application no. 12224/09 and Siyanko c. Ukraine , application no. 52571/11) on account of the restriction of the applicants’ right to defence in the criminal proceedings against them; it also ruled that the overall fairness of those proceedings had been prejudiced.

On 13 November 2019 and 9 September 2020 respectively, the Grand Chamber of the Supreme Court, having reviewed the applicants’ cases in the light of the respective Court judgment, decided to exclude from the evidence the applicants’ confessions given in breach of their right to defence. In the Alakhverdyan case the Supreme Court also excluded some other evidence that it considered obtained in the same deficient way. In the Siyanko case the Supreme Court noted that the violations of the applicant’s rights found by the Court only concerned the confessions as such but not further investigative actions and that the Court had not found that the proceedings as a whole were unfair.

The Supreme Court eventually upheld the applicants’ convictions finding that the remaining evidence had been sufficient to prove their guilt.

The applicants complained under Article 6 § 1 that the Supreme Court, instead of referring the case to a trial court for a fresh consideration, had reassessed the facts and evidence in their cases, despite having no jurisdiction to do so. Under Article 6 § 3 (a), (b), (c) and (d) they complained that, insofar that the Supreme Court went into the reassessment of evidence, their right not to incriminate themselves and their right to defence had been violated anew, given that the Supreme Court had excluded part of the evidence obtained in breach of those rights but had relied on other pieces of evidence deriving from that excluded part of evidence. The applicants further argued that given the above actions of the Supreme Court, they had had no adequate facilities to prepare their defence as they had not been informed of the evidence on which the prosecution had intended to rely if their initial confessions had been excluded, and that the exclusion of some of the evidence from their cases had changed the situation to the extent that it had required the witnesses to be re-questioned, but this had not been done.

The applicants relied on the Court’s judgments in the cases of Shabelnik v. Ukraine (no. 2) , no. 15685/11, 1 June 2017 and Yaremenko v. Ukraine (no. 2) , no. 66338/09, 30 April 2015.

QUESTIONS TO THE PARTIES

1. Is Article 6 § 1 of the Convention under its criminal head applicable to the proceedings in the present cases (see Shabelnik v. Ukraine (no. 2) , no. 15685/11, 1 June 2017 and Yaremenko v. Ukraine (no. 2) , no. 66338/09, 30 April 2015)?

2. Did the applicants have a fair hearing in the determination of the criminal charges against them by a tribunal established by law, in accordance with Article 6 § 1 of the Convention? In particular,

(a) Did the Supreme Court have competence under domestic law to assess the facts and evidence anew, without sending it to the trial court for a fresh consideration?

(b) In the light of the Supreme Court’s approach to the cases and its findings regarding the remaining evidential basis, were the applicants

- informed promptly and in sufficient detail of the nature and cause of the accusation against them, as required by Article 6 § 3 (a) of the Convention?

- afforded adequate facilities to prepare their defence, as required by Article 6 § 3 (b) of the Convention?

- able to defend themselves through legal assistance of their own choosing, as required by Article 6 § 3 (c) of the Convention?

- able to examine witnesses against them and to obtain the attendance of witnesses on their behalf, as required by Article 6 § 3 (d) of the Convention?