24. 06. 2025
On 12 June 2025, the High Anti-Corruption Court held a court hearing in criminal proceedings No. 52022000000000228 against Oleksandr V. Dubilet, who is accused of committing criminal offences under Part 2 of Art. 28, Part 1 of Art. 366, Part 2 of Art. 28, Part 2 of Art. 366, Part 5 of Art. 191 of the Criminal Code of Ukraine (related to embezzlement of funds of PJSC CB Privatbank, legalisation of criminal proceeds and official forgery of documents, which caused significant financial losses to the bank), Volodymyr A. Yatsenko under Part 5 of Art. 191, Part 3 of Art. Article 209 of the Criminal Code of Ukraine, Olena A. Bychykhina under Article 191, paragraph 5, Article 209, paragraph 3 of the Criminal Code of Ukraine, Nataliia V. Onyshchenko under Article 191, paragraph 5, Article 209, paragraph 3 of the Criminal Code of Ukraine, Lyudmyla O. Shmalchenko under Article 27, paragraph 5, Article 191, paragraph 5 of the Criminal Code of Ukraine, and Nadiia O. Konopkina under Article 27, paragraph 5, Article 191, paragraph 5 of the Criminal Code of Ukraine. The hearing was attended by the defendants (via video link), defence counsels, the prosecutor and the panel of judges: Inna O. Bilous, Viktor V. Nogachevskyi, with Markiyan V. Halabala presiding. The victim’s representatives were absent from the courtroom.
The main subject of consideration was the defense’s motions.
Within the framework of this court session, the defense filed a number of motions, which can be conditionally divided into several groups:
- Motions to cancel the seizure of property
A number of such motions were filed in the interests of Oleksandr V. Dubilett, Lyudmyla O. Shmalchenko and Nadiia O. Konopkina. The defense argued their claims, pointing to a number of significant violations, in particular:
- the excessively burdensome nature of the arrests and their disproportionate duration;
- non-compliance with the principle of proportionality of interference;
- failure to take into account the ratio between the amounts of the alleged damages and the value of the property on which the arrest was imposed;
- the formal nature of judicial control over the imposition of arrests and the lack of proper motivation in the decisions;
- interference with the property rights of third parties;
- in the cases of Lyudmyla O. Shmalchenko and Nadiia O. Konopkina. – the arrest of all property owned by the spouses on the right of joint ownership;
- consideration of part of the prosecution’s motions for arrest without the participation of the defense, which led to unfounded decisions with potentially excessive consequences for the accused.
- In view of the above, the defense asked the court to cancel the said arrests.
The court attached the motion to the case file.
In this regard, it is worth noting that any restriction of the right to peaceful possession of property must comply with clear standards developed by the case law of the European Court of Human Rights. Experts from the IAC ISHR monitoring mission emphasize that interference by state authorities in the right to property is permissible only if it: 1) is provided for by law; 2) has a legitimate aim related to the protection of the public interest; 3) is proportionate and does not create an excessive burden for the individual. The requirement to ensure a fair balance between the interests of society and the rights of the individual is of particular importance. The seizure of property cannot be carried out formally or automatically – each such measure must be justified in the light of the specific circumstances, including the value of the property, the alleged damage and the status of the owner. If these criteria are not met, the interference may be considered arbitrary. In this regard, the court must be particularly careful when deciding to seize property in order to avoid violations of Article 1 of Protocol No. 1 to the ECHR.
The ECtHR notes in this regard that confiscation, even if it involves deprivation of property, nevertheless constitutes control over the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1. Furthermore, in some cases where the confiscation involved a permanent transfer of ownership and the applicant had no real possibility of regaining his property, the ECtHR has considered that the measures in question amounted to deprivation of property. In both situations, the Court must establish whether the measure was lawful and “in the general interest” and whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. The nature of the interference, the aim pursued, the nature of the property rights interfered with and the conduct of the applicant and the intervening authorities are among the essential factors relevant to assessing whether the impugned measure strikes the requisite fair balance and, in particular, whether it imposes a disproportionate burden on the applicant (Melandri v. San Marino, §§ 63-64). Such a balance assumes particular importance in cases of long-term restrictions on property rights or where there are significant material consequences for the individual. Furthermore, as stated in Ramaj v. Albania (§ 108), the State is under an obligation to act promptly, consistently and responsibly, minimising the risks of erroneous decisions which may result in an excessive burden on individuals or legal entities.
In the case of Сredit europe leasing IFN S.A. v. Romania, the ECtHR found that the excessive duration of the seizure of property and the absence of an effective remedy constituted a violation of Article 1 of Protocol No. 1 to the ECHR (right to peaceful possession of possessions). The Court emphasised that, although the measure was formally based on law, its unjustified duration and the impossibility of its effective challenge had led to a violation of the applicant’s rights. The property remained under seizure for years without a clear legal perspective, and some of the objects were not even returned after the seizure was lifted. Such restrictions create prolonged uncertainty and undermine confidence in the legal system (§§ 14-22). Therefore, the excessive duration of the seizure – especially without regular review, proportional justification and the possibility of appeal – may in itself constitute a violation of the Convention.
Furthermore, it is important to emphasise that the right to peaceful possession of possessions is inextricably linked to the individual’s right to an effective remedy. This means that the person must have a real opportunity to file a case with the competent authority to challenge the interference, in compliance with the principle of equality of arms and adversarial proceedings. The absence of an adversarial process in which all aspects relevant to the outcome of the case could be considered deprives the interference of legitimacy. The ECtHR in the case of Călin v. Romania (paragraph 76) emphasizes that the applicable procedural mechanisms should be assessed comprehensively, taking into account the general guarantees of a fair trial.
Taking into account all of the above, we cannot unequivocally state that the arguments of the defense counsel are unfounded.
- Motions regarding the recovery of items and documents
In substantiating their motion, the defense counsel of Shmalchenko L.O. referred to the existence of a ruling of the Appellate Chamber of the High Anti-Corruption Court, which expressly ordered the pre-trial investigation authorities to return two mobile phones seized during searches in November 2020. Despite the direct legal binding nature of such a decision, its implementation has not been ensured for several years. According to the defense lawyers, repeated appeals on this issue remain without a proper response from the court. In this regard, the defense party requested to reclaim the specified property through judicial control.
The court attached the relevant motion to the case file.
The experts of the IAC ISHR monitoring mission draw attention to the fact that the specified situation raises justified concerns from the point of view of compliance with the principle of the rule of law, in particular in terms of the binding nature of the execution of court decisions. The prolonged non-execution of a decision issued by a competent court undermines trust in justice and creates a risk of selective application of the law to the parties to the proceedings.
The European Court of Human Rights emphasizes that the execution of a court decision constitutes an integral part of the “trial” within the meaning of Article 6 of the Convention. Otherwise, the said provision will be deprived of practical effectiveness (Kural v. Turkey, § 61).
Furthermore, the situation calls into question the observance of the principle of legal certainty, a fundamental element of the rule of law. This principle requires that legal norms be clear, accessible and foreseeable, and their application consistent and stable. Legal certainty implies not only the formal possibility of defending one’s rights, but also the realistic ability to exercise such possibility in practice.
The ECtHR has stressed the importance of legal certainty as an organic component of the principle of the rule of law, which must be observed at all stages of the judicial process (Lupeni Greek Catholic Parish and Others v. Romania, § 116).
Given the clear content of the decision of the Appeals Chamber of the HCJ, which expressly obliges to return the property, there is no reason for its ambiguous interpretation or non-execution. The actual ignoring of the decision for several years, in the absence of a response to the repeated statements of the defense, constitutes a significant violation of legal stability and may undermine confidence in the judicial system.
Also, a motion to request the seizure of items and documents was filed by the defense attorneys in the interests of Volodymyr A. Yatsenko. Substantiating it, the defense attorney noted that it was necessary to request the protocol of one of the searches conducted within the framework of this criminal proceedings. In the defense attorney’s opinion, the aforementioned document is of essential importance for establishing the circumstances of the case and can be used as evidence in favor of the accused.
The court attached the aforementioned motion to the case file.
In this context, the experts of the IAC ISHR monitoring mission emphasize the importance of ensuring the principle of equality of arms, which is a central guarantee of a fair trial under Article 6 of the Convention. In accordance with this principle, each party must have a real opportunity to present its position under conditions that do not put it in a less favorable position compared to its opponent.
This principle is closely linked to the right to an effective defence. In this context, the request for a search report is part of the basic procedural guarantees that allow the defence to carefully examine and prepare its legal position. If the prosecution has access to all the materials constituting the evidentiary base, then the defense must also be placed on an equal footing for the effective analysis and reconsideration of such evidence. Restrictions on access to key documents that may be used in the defendant’s favor may undermine the adversarial nature of the proceedings. In this regard, access to the search report is not only a technical issue, but a procedural guarantee that ensures the protection of the defendant’s right to properly prepare his or her case.
The European Court of Human Rights has repeatedly emphasized in its case-law that, in accordance with Article 6 § 3 of the European Convention, the defense must include everything that is “necessary” for proper preparation for the trial. The defendant must be able to organize his or her defense without hindrance, present all relevant arguments and influence the outcome of the trial (Kikabidze v. Georgia, §§ 42–43). The question of the sufficiency of time and resources for the preparation of the defence must be assessed individually in the light of the specific circumstances of the case (Rook v. Germany, § 57).
As part of the preparatory proceedings, the defense also filed other motions, on which the court also stated its intention to rule after the completion of the preparatory stage.
In view of the above, the case is recommended for further monitoring.
