As part of the project “Monitoring of Criminal Proceedings and Analysis of Court Decisions in War Crimes Cases (Article 438 of the Criminal Code of Ukraine)”, the monitoring covered all elements of the right to a fair trial as guaranteed by Article 6 of the European Convention on Human Rights, including the right to defence as its key component.

Particular attention was paid to ensuring the right to effective, genuine, and practical legal assistance, as the vast majority of cases in this category are tried in absentia, with the defence counsel being the only party representing the accused. In such circumstances, upholding not merely formalistic standards, but ensuring the actual quality of legal defence becomes critically important for safeguarding fair trial guarantees and for the proper qualification and prosecution of war crimes.

The European Court of Human Rights, in its well-established case law, emphasises that the right to defence encompasses not only the formal appointment of legal counsel, but also the guarantee of effective and competent legal assistance. Where the actions or omissions of defence counsel run counter to the interests of justice, the state is under an obligation to take proactive measures, even in the absence of complaints from the defendant. A conflict of interest, technical obstacles, restricted access to a lawyer, or a purely formalistic approach by the defence may constitute a violation of Article 6 of the Convention.