Introduction
The judicial system should serve as a bastion of justice and a guarantee of the protection of every individual’s rights. The principle of the rule of law is unattainable without an independent and impartial judiciary that ensures the equality of parties and adherence to procedures. However, the reality of Ukrainian justice is far from this ideal. Monitoring of court proceedings and surveys of lawyers conducted by IAC ISHR in 2024 reveal an alarming trend: systemic violations are not an exception but the norm. These are not merely isolated errors but deep structural issues that undermine public trust, weaken legal guarantees, and create risks of arbitrariness. Is it possible to change this situation? The answer requires thorough analysis and concrete actions.
Violation of the Principle of Equality of Arms
IAC ISHR conducted a survey among lawyers across different areas of practice regarding compliance with the principle of equality of arms in judicial proceedings. The results highlighted the scale of the problem:
- 69.8% of lawyers reported that they very often (in more than 75% of cases) encounter violations of this principle;
- 18.8% stated that such violations occur in 50-75% of cases.
In total, 88.6% of respondents regularly observe inequality between parties in court proceedings. According to the European Court of Human Rights (ECtHR), even the perception of inequality by lawyers may indicate that the judicial process does not ensure equal opportunities for each party, which is critical for upholding justice. As noted in multiple ECtHR rulings, it is essential not only that justice is done but also that it is seen to be done. Such a perception undermines fundamental principles of justice and may constitute grounds for recognizing the proceedings as a violation of the right to a fair trial.
Throughout 2024, the IAC ISHR monitoring mission documented several widespread issues concerning the observance of the principles of equality and adversarial proceedings. In particular, defense attorneys were often denied the right to summon and question key witnesses, contradicting ECtHR case law, which prescribes a three-step test for assessing the legitimacy of such restrictions. Additionally, there were cases where the defense was denied access to criminal case materials, significantly limiting the ability to construct an effective legal position.
Another significant issue is the refusal to grant defense motions without proper justification, whereas identical motions from the prosecution were approved without hindrance. Instances were recorded where courts restricted the defense’s speaking time, treated defense submissions as procedural abuse, and conducted hearings in the absence of defense attorneys. Such practices fail to meet fair trial standards and contradict the fundamental principles of equality of arms in judicial proceedings.
Thus, the identified violations indicate systemic challenges in ensuring a balance between parties in judicial proceedings. Addressing these issues requires stricter oversight of compliance with ECtHR standards, particularly regarding the proper consideration of parties' arguments, equal access to evidence, and the defense’s right to full participation in proceedings.
Restrictions on Time for Reviewing Case Materials
A particularly concerning issue is the practice of limiting the time granted to the defense for reviewing case materials, as it directly impacts the ability to mount an effective defense and maintain equality of arms in proceedings. The ECtHR has repeatedly emphasized that every accused person has the right to "adequate time and facilities" to prepare their defense under Article 6 § 3(b) of the European Convention on Human Rights (ECHR). Restrictions on this right can create disproportionate obstacles for the defense, particularly in complex or voluminous criminal cases.
A second survey focusing on time restrictions for case material review also yielded notable results:
- 45% of lawyers reported isolated instances of such restrictions;
- 26% encountered the issue in 25-50% of cases;
- 10% faced it in 50-75% of cases;
- 9% experienced it in over 75% of cases.
This issue is especially relevant in criminal proceedings, where lawyers are often forced to photograph large volumes of materials for later review. Such practices may violate the standard of a fair trial, as, according to the ECtHR’s approach, effective defense preparation requires real, not merely formal, access to case materials (see Galović v. Croatia, Ruiz-Mateos v. Spain).
Lawyers frequently noted in their comments that this practice is particularly prevalent in criminal cases. At the same time, since the survey was not limited to specific areas of law, the results provide a comprehensive picture. Nonetheless, given these factors, the finding that 19% of respondents faced time restrictions on case material review in more than half of their cases is an alarmingly high figure.
IAC ISHR observers note that once a court restricts time for reviewing case materials, this often becomes a systemic issue throughout the proceedings. This can create structural inequality between parties and violate the principles of "adversarial proceedings" and "equality of arms," which are integral components of a fair trial under Article 6 of the ECHR (see Galstyan v. Armenia, Tarasov v. Ukraine).
Analysis of General Trends
In December 2024, in collaboration with Yurydychna Hazeta, an additional study titled Barometer of Justice Fairness 2024 was conducted. It involved representatives of 22 law firms and individual practitioners. The study aimed to identify the most prevalent issues in the judicial system.
Respondents were asked to assess the frequency of violations of the right to a fair trial based on seven key criteria, using a scale from 1 to 5, where 1 meant "very rarely" (less than 25% of cases) and 5 meant "very often" (more than 75% of cases).
The results indicate serious issues within the judiciary that directly impact adherence to the right to a fair trial:
- Violation of the presumption of innocence: This is observed at a systemic level, with 55% of surveyed lawyers stating they encounter it "very often," and another 38% reporting it "often." This points to a deep-rooted problem in approaches to criminal prosecution and judicial proceedings, contradicting European justice standards.
- Insufficient justification for pretrial detention: Another critical issue is the justification for pretrial detention. 37.5% of lawyers reported that courts "very often" fail to provide sufficient reasoning for imposing this measure of restraint, while another 35% described this practice as "frequent." Only 5% of respondents encountered this problem rarely. Such indicators point to a trend of unjustified restrictions on individual freedoms, which directly contradicts the principle of proportionality and the standards of the European Court of Human Rights (ECtHR).
- Judicial Bias
Another alarming indicator is judicial bias. 42.5% of surveyed lawyers reported encountering this phenomenon "very often," while 35% indicated that they face it "often." This poses serious risks to the implementation of the principles of impartial and independent justice, which are fundamental requirements under Article 6 of the European Convention on Human Rights (ECHR).
- Impact of Legal Uncertainty on Court Decisions
Survey results regarding the impact of legal uncertainty on court rulings highlight the significant role this factor plays in judicial proceedings. More than 35% of respondents noted that legal uncertainty has a substantial influence on court decisions, indicating systemic issues within the legal sphere, where a clear legal framework for making well-founded decisions is not always present.
Additionally, 23% of respondents stated that legal uncertainty frequently affects judicial decisions. This suggests that even in cases where certain legal norms or precedents exist, their lack of clarity or contradictions can create difficulties. The problem of legal uncertainty may impact the effectiveness and quality of court rulings, which is a crucial factor in ensuring justice in judicial proceedings.
- Unjustified Delays in Court Cases
Unwarranted delays in judicial proceedings remain a serious issue in the justice system: 58% of surveyed lawyers reported facing this problem frequently or very frequently. This indicates a systemic inefficiency in judicial processes, leading to delays in case resolution and violations of the principle of reasonable time for judicial review. Such a situation not only complicates access to justice but also exacerbates public distrust in the judiciary, forcing citizens to seek alternative means of protecting their rights.
- Violations of the Right to Defense
Violations of the right to defense also raise serious concerns: 52.5% of respondents indicated that this issue is frequent or very frequent. The high rate of such violations undermines fundamental principles of a fair trial and increases the risk of biased rulings. The lack of adequate opportunities for an effective defense in court proceedings contradicts international standards and may lead to an increase in the number of complaints submitted to the European Court of Human Rights.
- Ensuring the Adversarial Principle
The issue of ensuring the adversarial nature of proceedings deserves particular attention. Only 42.5% of surveyed lawyers reported that this principle is observed at least occasionally, while 32.5% assessed the situation as rare or almost nonexistent. This indicates an imbalance in the procedural opportunities of the parties, which can create additional challenges in protecting clients' rights and interests.
The presented results confirm the urgent need to strengthen the monitoring of compliance with the right to a fair trial and to introduce effective mechanisms for oversight of the judiciary. Failure to address these issues will only deepen the crisis of trust in the judicial system and contribute to an increase in the number of cases being challenged in appellate and cassation courts.
Positive changes in these spheres will not only enhance confidence in the judiciary but will also have practical implications:
- Reducing the workload on appellate courts by decreasing the number of appeals against rulings issued with procedural violations.
- Shortening case review periods, even at the first-instance level, by eliminating unjustified delays and ensuring strict adherence to procedural safeguards.
- Enhancing legal certainty by fostering the creation of predictable, fair, and well-reasoned judicial decisions.
How to Ensure Justice?
Despite ongoing judicial reforms, the problem of violations of the right to a fair trial remains unresolved. However, opportunities for change exist. The introduction of modern technologies, particularly algorithmic analysis of violations and the dissemination of such information, can contribute to greater transparency in judicial processes. Automated case distribution and digital databases of judicial practice can help identify systemic violations and improve the objectivity of adjudication.
The role of civil society in this area remains critically important. Independent observers, analytical centers, journalists, and lawyers not only document violations but also actively contribute to their elimination. For instance, lawyers have repeatedly noted that after the start of monitoring by IAC ISHR, courts have begun listening more attentively to the defense and allowing lawyers to submit motions. Reports and other materials prepared by experts from the monitoring mission regarding violations of the right to a fair trial are used in appellate and cassation courts (particularly for analyzing inconsistent applications of ECHR norms and ECtHR case law) as well as in courts of other countries. These materials are undoubtedly submitted to the European Court of Human Rights and other foreign courts to reflect the real state of compliance with the right to a fair trial in Ukraine. They are actively used by legal practitioners advocating for the right to a fair trial. Public participation ensures adherence to the principle of transparency in judicial proceedings.
Conclusion
Violations of the right to a fair trial are not merely a legal issue but a threat to society as a whole. Each instance of an unjust ruling erodes citizens' trust in the justice system, while each exposure of violations is a step toward a fairer system.
Justice does not come by itself – it must be fought for.