Monitoring of criminal proceedings of Nelia Shtepa (hearing 08.17.20)

On August 17, 2020, in the Ordzhonikidze District Court of Kharkov, a hearing was held in the case of Nelia Igorevna Shtepa. She is charged with encroachment on the territorial integrity and inviolability of Ukraine, resulting in the death of people and the creation of a terrorist group or organization (according to part 3 of Article 110, part 1 of Article 258-3 of the Criminal Code of Ukraine).

The indictment was filed with the Chervonozavodskiy District Court of Kharkov on October 31, 2014. However, by the decision of the court of appeal dated February 1, 2017, the case was transferred for consideration to the Kominternovskiy district court of Kharkov, since after satisfying the applications for self-challenge of judge V.A. Ezhov in the Chervonozavodskiy District Court of Kharkov it was impossible to form a new composition of the court for the trial due to the insufficient number of judges. Accordingly, in the Kominternovskiy District Court of Kharkov, the case began to be considered from the stage of the preparatory hearing.

Further, by the decision of the Court of Appeal of May 26, 2017, the case was transferred from the Kominternovsky District Court of Kharkov to the Leninsky District Court of Kharkov. And again, the consideration started from the stage of the preparatory court session.

After that, the case was transferred to the Oktyabrskiy District Court of Kharkov, and then to Ordzhonikidzevskiy. Thus, the hearing of the case started over 5 times.

On October 24, 2019, the European Court of Human Rights ruled in the case of “Shtepa v. Ukraine” in favor of the accused and found that Ukraine had violated Articles 5 § 3, 6 § 1 of the Convention. The ECtHR also recognized that the pre-trial detention, which lasted 3 years and 3 months, had no sufficient grounds. The domestic courts motivated the decision by the seriousness of the charges, but not by specific facts (“Shtepa v. Ukraine”, paras. 22, 27).

In addition, in paragraph 36 of the judgment in this case, the ECtHR found that the domestic court did not exercise due diligence in this case. In particular, according to information provided by the authorities, hearings were often scheduled at intervals of three to four weeks, and in six cases hearings were postponed due to the failure of witnesses to appear in court. The absence of witnesses led to the fact that the hearing was postponed for a total of three and a half months.

Regarding the judges’ repeated refusals from the case, the ECtHR notes that each refusal led to the reopening of the proceedings from the very beginning. Thus, the total delay in the proceedings was more than seven months. Having examined all the materials submitted to it and in the light of its case-law on this issue, the Court considers that in the present case the length of the proceedings was excessive and did not meet the “reasonable time” requirement (“Shtepa v. Ukraine”, paras. 37, 38).

The Ukrainian justice system is riddled with one global problem – the lack of judges. The Neli Shtepa case is a vivid example of how the understaffing of judges can affect the reasonableness of the length of criminal proceedings.

On July 21, 2020, the Law “On Amendments to the Criminal Procedure Code of Ukraine regarding the implementation of criminal proceedings in a court of first instance by a panel of judges” No. 817-IX was adopted, which amended Article 31 of the Criminal Procedure Code of Ukraine. Now, criminal proceedings in the court of first instance in relation to crimes for the commission of which the punishment is imprisonment for a term of more than ten years are carried out collectively by a court of three judges only at the request of the accused.

It would seem that a mechanism is envisaged that should facilitate the consideration of the case within a reasonable time frame. However, in the case of Nelia Shtepa, the aforementioned provision, on the contrary, became the basis for the postponement of the court session until the next month.

Thus, one of the judges, G.V. Matvievskaya, at the court session on August 17, 2020, recused herself, since the accused did not file a motion to consider the case by a panel of three judges. The judge acted in accordance with the law.

The transitional provisions of the above Law provide that in criminal proceedings in the court of first instance, in which, prior to the entry into force of this Law, the collegiate composition of the court was determined according to the rules in force prior to the entry into force of this Law, and a preparatory hearing takes place, but the trial has not yet been scheduled , the trial in criminal proceedings shall be conducted and completed by the composition of the court provided for in the light of the provisions of this Law.

The court sessions in the case were constantly postponed, respectively, the case is still at the stage of the preparatory court session.

It should be noted that the preparatory hearing in the Ordzhonikidzevskiy District Court of Kharkov was appointed by a court decision as early as March 12, 2018. However, the stage of the preparatory court session has not ended.

Thus, the mechanism, which was supposed to speed up the consideration of complex criminal cases, in the case of Nelia Shtepa, on the contrary, became the reason for the postponement of the court session.

During the court session on August 17, it was not possible to hear the position of the parties regarding such a statement by the judge, and the parties agreed to postpone the court session in order to prepare for the session. The next court hearing was scheduled for August 27, 2020, but the same judge, G.V. Matvievskaya, will be on vacation at this time. Thus, the next hearing is scheduled for 04 September 2020.

The ECtHR observes that Article 6 § 1 of the Convention imposes on Contracting States an obligation to organize their legal systems in such a way that their courts can comply with each of the requirements of this provision, including the obligation to resolve cases within a reasonable time (“Duklos v. France”, para. 55).

However, even after the European Court found a violation of Nelia Shtepa’s right to trial “within a reasonable time”, the accused cannot exercise her right to receive, within a reasonable time, a final decision on the validity of the charges against her.

The International Society for Human Rights will continue to monitor and clarify the details of this proceeding.