ECHR judgment in Sytnyk v. Ukraine: a precedent that calls into question the legitimacy of the Corruption Register

The recent judgment of the European Court of Human Rights (hereinafter – the ECHR) in the case of Sytnyk v. Ukraine has shaken the legal community for good reason.

An essential aspect of this case is that the complainant against Ukraine is a person who, during the ECHR case, held responsible government positions and was a politically exposed person within the meaning of national legislation.

This is Artem Sytnyk, former Director of the National Anti-Corruption Bureau of Ukraine, former Deputy Head of the National Agency for the Prevention of Corruption and Deputy Director of the Defense Procurement Agency.

The aforementioned ECHR Judgment is significant not only in terms of the position of the applicant, but also in terms of legal features, which will definitely have consequences for further law enforcement practice in corruption and corruption-related legal relations.

Analyzing the Decision in the case of Sytnyk v. Ukraine, it is worth noting the following details:

• The complainant’s belief in the bias of the court that considered his case in the court of first instance;
• Incomplete assessment of the complainant’s arguments by both the court of first instance and the court of appeal;
• Circumstances under which the person involved was actually charged with the burden of proving his or her innocence.
• Excessive punishment and its inconsistency with the principles of the Code of Administrative Offenses;

With regard to the first circumstance, which the applicant described as the court’s bias, it should be emphasized that the ECtHR did not actually give an in-depth assessment of whether the court was really dependent or biased, but noted that the decision that resolved the case on the merits did not sufficiently refute the applicant’s arguments regarding the court’s bias.

It is worth emphasizing that national legislation – the Code of Ukraine on Administrative Offenses – generally does not provide for the procedure for recusal and grounds for recusal or self-recusal of a judge from a case. Quite often, judges refuse to recuse themselves from administrative offenses in the course of consideration of cases on administrative offenses, arguing that such a procedure is not provided for by the current Code of Administrative Offenses.

However, the ECHR has once again noted that: “What is at stake is the trust that the courts in a democratic society must inspire in the public. Thus, any judge in respect of whom there are legitimate grounds to fear bias must withdraw (Ramos Nunes de Carvalho e Sá v. Portugal and Maurice v. France).

In view of this, the ECHR judgment in the case of Sytnyk v. Ukraine is useful in this regard and will take the champion position in terms of frequency of citation by both defense lawyers and judges in cases of administrative offenses, since the ECHR judgment is part of national legislation.

However, it is worth noting that the ECHR did not indicate whether there were any grounds to consider the court of appeal biased, which nevertheless upheld the decision of the court of first instance that brought A. Sytnyk to legal responsibility.

Given the outcome of the ECHR case, this case has gained new momentum, since according to Art. 2971 of the Code of Administrative Offenses, the only and exclusive case of cassation appeal in an administrative offense case is the establishment by an international judicial institution whose jurisdiction is recognized by Ukraine of a violation by Ukraine of international obligations in the course of a court’s decision on an administrative offense case.

Therefore, we expect the cassation appeal of the defense in this case to be considered by the Supreme Court.

The ECHR did not ignore the validity of the decision and the incomplete assessment of the arguments of the person brought to administrative responsibility.

We are all used to quoting in the decisions of national judges the position of the ECHR in the case of Ruiz Toria v. Spain, according to which a detailed response to each argument put forward by the applicant is not required, this obligation implies that the parties to the proceedings can expect to receive a specific and clear response to the arguments that are decisive for the outcome of the proceedings. In other words, the court may not evaluate all the arguments of a party, but limit itself to those that are crucial to the case. In this case, the ECtHR noted that the national courts failed to properly assess the testimony of the main prosecution witness and did not sufficiently consider the evidence of the defense.

In addition to the incompleteness of the trial, the ECtHR also noted the shift of the burden of proof from the prosecution to the defense.

In general, the national anti-corruption legislation tends to be of the type where a person held legally liable is actually obliged to prove his or her innocence. In this case, it is worth mentioning the Decision of the Constitutional Court of Ukraine in case No. 1-135/2018 (5846/17) dated 26.02.2019 on the constitutional petition of 59 MPs of Ukraine on the compliance of Article 368-2 of the Criminal Code of Ukraine with the Constitution of Ukraine (constitutionality), in which the CCU stated that it is inadmissible to indulge in limiting or distorting the presumption of innocence when the law obliges a person to prove his or her innocence.

The ECtHR stated that in this case, the court shifted the burden of proof to A. Sytnyk, which violated the presumption of innocence (Aidaric v. Croatia).

The most innovative and revolutionary is the part of the judgment in Sytnyk v. Ukraine, which concerns the assessment of the excessiveness (proportionality) of punishment for an administrative offense that results in the entry of a person into the Unified State Register of Persons Who Committed Corruption or Corruption-Related Offenses (hereinafter – the Register) for an indefinite period.

Thus, in assessing the applicant’s arguments, the ECtHR concluded that in accordance with Article 39 of the Code of Administrative Offenses, if a person subject to an administrative penalty has not committed a new administrative offense within one year from the date of completion of the penalty, then that person is considered not to have been subject to an administrative penalty. At the same time, a person brought to legal liability (regardless of the severity of the offense) is entered into the Register for an indefinite period of time, which, in the opinion of the ECtHR, has signs of lifelong stigmatization and stigmatization and competes with the principles of the Code of Administrative Offenses, which violates the principles of proportionality and violates Article 8 of the Convention.

This leaves the question of the future of the Register, as each person included in such a register has suffered disproportionate consequences and has been subjected to a violation of Article 8 of the Convention in relation to himself or herself for an indefinite period. Since even after the commission of a criminal offense, the current Criminal Law in Art. 89 provides that persons sentenced to criminal punishment after a certain period of time are recognized as having no criminal record. At the same time, a peculiar form of punishment in the form of a lifetime stay in the Register was applied to those previously convicted of corruption offenses.

It is obvious that this decision will significantly change the approaches to consideration of both administrative cases on corruption offenses and administrative proceedings in general. And the fate of the Register after such an assessment by the ECtHR remains even more intriguing.