Chaykovskyy v Ukraine: individualisation principle fails fairness test in review proceedings

The European Court of Human Rights has found a violation of Article 6 § 1 in Chaykovskyy v Ukraine (Application no. 48879/19, 9 October 2025), determining that Ukraine's Supreme Court failed to provide adequate justification when treating improperly obtained evidence as inadmissible for certain defendants whilst accepting it against others in related criminal proceedings.

Background and Supreme Court review

The applicant was convicted alongside three co-defendants for crimes committed by an armed gang in early 2000. Following successful applications to the European Court by all three co-defendants—resulting in findings of Article 6 violations concerning statements made without legal representation and untested witness testimony—each applied to Ukraine's Supreme Court for extraordinary review.

In its 17 April 2019 decision, the Supreme Court's Grand Chamber adopted a selective approach. It quashed convictions on certain charges whilst upholding others, relying on what it termed the principle of "individualisation of criminal responsibility". This resulted in the immediate release of two co-defendants who had already served recalculated sentences, whilst the applicant remained imprisoned for life.

The crux of the issue concerned evidence obtained from co-defendants in breach of their Convention rights. Mr Zakshevskiy's confession, given without a lawyer whilst facing potential life imprisonment, was particularly significant. This confession implicated multiple defendants across several criminal episodes. The Supreme Court acknowledged it constituted inadmissible evidence for Mr Zakshevskiy but declined to exclude it when considering other defendants' convictions.

The Court's analysis

The European Court examined whether Article 6 applied to the extraordinary review proceedings. Distinguishing cases where Article 6 does not typically engage (such as routine applications for reopening), the Court found that the Supreme Court's approach involved a fresh examination of evidence. This examination went beyond merely granting or refusing reopening—it actively excluded certain tainted evidence whilst upholding convictions based on related evidence against other defendants.

The Court determined this constituted an extension of the original criminal proceedings, bringing the matter within Article 6's scope. This conclusion aligned with the Court's previous finding in Shabelnik v Ukraine (no. 3) that Article 7 was engaged in similar circumstances.

On the merits, the Court emphasised that accepting evidence as admissible against one defendant whilst rejecting it as inadmissible against another in proceedings concerning the same underlying facts requires detailed reasoning and strong justification. The Supreme Court's reliance on "individualisation of criminal responsibility"—a sentencing principle—provided no meaningful explanation for differential treatment of evidence admissibility.

The Court noted the Supreme Court failed to address why the tainted nature of evidence did not affect the applicant's conviction or whether domestic legislation permitted such differential treatment. The principle of individualisation, properly understood, concerns how courts assess individual circumstances when sentencing, not how evidence obtained in breach of procedural rights should be treated across co-defendants.

Five dissenting Supreme Court judges had argued persuasively that evidence obtained in breach of proper procedure constitutes a serious breach affecting all co-defendants. They observed that one piece of evidence cannot logically be considered inadmissible for one person yet admissible for another, particularly where all defendants were charged with banditry involving joint enterprise.

The European Court's approach reflects established jurisprudence on evidence obtained from third parties in breach of Convention rights. Whilst not automatically rendering proceedings unfair, such evidence requires careful scrutiny. The absence of even basic reasoning for the Supreme Court's approach proved fatal to the proceedings' fairness.

Significantly, the Court found no violation regarding the length of proceedings, acknowledging the extraordinary difficulties caused by case files being located in territory outside Ukrainian government control since 2014. The authorities' efforts to recover files through the International Committee of the Red Cross demonstrated sufficient diligence in the circumstances.

The applicant was awarded €3,600 for non-pecuniary damage and €500 for costs and expenses.