Incitement in criminal proceedings: features of ECtHR judgments against Ukraine

The article is devoted to analysing the issue of incitement in criminal proceedings, with a particular focus on the specific features of the European Court of Human Rights (ECtHR) judgments against Ukraine. The relevance of this topic stems from the transformation in approaches to the protection of individual rights and the increasing number of cases in national practice where the balance between the interests of justice and the permissible limits of law enforcement activity is violated. The author notes that the issue of incitement is currently at the forefront of contemporary Ukrainian legal doctrine. However, it has not yet become the subject of thorough research at the level of dissertations or monographs, which complicates the formation of a comprehensive doctrinal foundation. Given the significant contribution of the ECtHR in shaping the conceptual foundations of understanding incitement – its defining characteristics, concept, and the development of material and procedural criteria – the author turns to an analysis of ECtHR cases concerning Ukraine, in particular: Yakhymovych v. Ukraine, Liubchenko v. Ukraine, and Berlizev v. Ukraine. Based on this analysis, the article emphasises that the ECtHR consistently adheres to the position that a person’s denial of committing a crime, when such crime was provoked, is of decisive importance for the legal assessment of the case. This approach is demonstrated in the ECtHR rulings in Liubchenko v. Ukraine and Berlizev v. Ukraine, where the defendants’ denial of guilt – combined with confirmation of incitement by pre-trial investigation bodies – led to the inadmissibility of the case under Article 6 §1 of the European Convention on Human Rights (ECHR). Conversely, in cases where the individual admits guilt but claims that “the crime would not have been committed if not for the incitement,” the effect is the opposite. A notable feature of the case Yakhymovych v. Ukraine is that the applicant did not plead guilty during the trial; however, the ECtHR reviewed the case and, considering the procedural shortcomings and the nature of the defence used, did not exclude the case from the category of “incitement cases.” The Court considered the case on the merits and found a violation of the ECHR. Based on the Court’s reasoning in the cases concerning Ukraine, the article concludes that it is essential to conduct a careful analysis of the motives behind ECtHR decisions, taking into account the individual circumstances of each case. This, in turn, will help establish effective legal strategies in incitement-related cases and also highlights the need to discuss the Court’s departure from its established practice, according to which the accused’s admission of guilt was considered a prerequisite for the admissibility of a complaint