Particular European Standards of Guaranteeing the Right to a Fair Trial in the Context of International Armed Conflict

Abstract

The relevance of the research topic is due to at least several factors. Firstly, according to the analysis of the case law of the European Court of Human Rights, as well as annual reports on this issue, improper compliance with the standards of ensuring the right to a fair trial, established in Article 6 of the European Convention on Human Rights, traditionally belongs to the most common violations by Ukraine as a defendant state and represents a systemic and structural problem. Secondly, the ongoing international armed conflict and the need to investigate and bring to trial an increasing number of criminal offences (including those against national security, war crimes, etc.) with all the challenges that this situation entails, puts an additional burden on the law enforcement and judicial systems and complicates their proper and effective functioning. Thirdly, the introduction of martial law is accompanied by additional restrictions on human rights and freedoms, and a derogation from a number of positive obligations assumed by the state, including in the area of ensuring the right to a fair trial. In view of the above, there is a necessity of scientific reflection on the essential content of the minimum standards for ensuring this right in the light of their implementation in the context of international armed conflict, as well as analysis of the novelties introduced into the national criminal procedure legislation in terms of compliance with the outlined standards in the course of implementation of the relevant regulatory provisions. The comprehensive application of a system of scientific research methods and techniques (in particular, dialectical, formal legal, comparative, systemic and structural, etc.) made it possible to consider the problems of ensuring access to court (including access to the procedures for reviewing criminal proceedings), which may be related to the issue of restoring criminal proceedings lost as a result of hostilities and occupation. The author also clarifies the system of guarantees and prerequisites that must be met in order to ensure the right to defence for suspects and accused persons who are not directly involved in criminal proceedings (i.e., in absentia proceedings). Finally, the author describes the key requirements for ensuring the right to cross-examination (Article 6(3)(d) ECHR) in the case of using testimony recorded during the pre-trial investigation by means of video recording.