A positive feature of the new Criminal Procedure Code outlawing the use of confessions obtained under duress has highlighted an undoubted failing – reduced possibility for review in cases where a miscarriage of justice may have occurred.

During a roundtable organized by the Kharkiv Human Rights Group with the above title, lawyer for the Ukrainian Helsinki Human Rights Union Oleh Levytsky spoke of a new standard of evidence introduced with the new Criminal Procedure Code [CPC]. “Confessions” will not be considered evidence if the person retracts them in court. Only evidence investigated during the court trial can form the basis for the indictment against a person.

So what about people who were convicted on the basis of other standards?

Arkady Bushchenko, UHHRU Executive Director and head of the Strategic Litigations Fund says that there have been a number of cases in the European Court of Human Rights and UN Human Rights Committee where it is clearly stated that there are systemic problems with obtaining evidence which then serves as the basis of the sentences. There have already been around 10 sentences, including life sentences, which were revoked by higher courts in Ukraine due to European Court of Human Rights judgements, and since there are a lot of cases under communication with the Ukrainian Government he imagines that some of these will also lead to revoked sentences.

He stresses that there needs to be an effective system for review of criminal cases since miscarriages of justice do happen. Such a system did exist however, unfortunately, in 2010 the competence of the Supreme Court was seriously reduced. Bushchenko notes that at present the Supreme Court effectively lacks the power to rectify court mistakes. “It has to await the judgement from an international court… In my opinion, this is a loss of the State’s sovereignty when the highest court body of the country cannot independently act, but has to wait for an instruction from an international body. This is first of all an inadmissible situation. Secondly, you get the impression that violations of the European Convention or International Covenant on Civil and Political Rights are one thing and significant violations of our domestic criminal process something rather different. In fact this is one and the same thing. … I think the Supreme Court’s competence needs to be reinstated to the pre-2010 situation.”

With regard to review of cases, he says that in 99% of cases it’s impossible to establish who rigged the case, and impossible to bring the culprits to justice. In cases where a person is serving life and such irregularities were involved, there is no legal possibility for obtaining review of the case. He calls this an abnormal situation and says that significant amendments are needed to criminal procedure legislation so that people unfairly convicted can have an opportunity to have their cases reviewed at higher level.

In the Resolution passed by the roundtable, concern is expressed over “an obsolete model for rectification of court errors”

“If the new CPC radically changes the concept and procedure for assessing evidence with confessions losing their dominant important as “the main evidence”, this practice must be extended to people convicted earlier whose sentences have come into force where the prosecution was based solely on confessions obtained during the investigation, often under duress, and which the defendant retracted in court.”

The new CPC does not provide for fair court review of such cases. The need for careful scrutiny is particularly vital in the case of people who received life sentences solely on the basis of such “confessions”.

The resolution calls for reinstatement of the Supreme Court’s powers with respect to judicial review. The new CPC, it states, infringes Article 22 of the Constitution since it narrows the grounds for review of criminal states and stresses that any flagrant violation of the right to a fair trial should be grounds for review.