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Human rights in Ukraine 2009 – 2010. 3. The right to liberty and security

22.02.2011

[1]

1.        Deprivation of liberty at criminal prosecution

According to the Supreme Court of Ukraine information, 45100 submissions to detain on remand were considered in 2009, 39100 or 86, 7 % out of them were allowed. 4300 appeals from the accused and their lawyers against judges’ decisions to apply this preventive measure were considered; 674 such submissions, or 1, 7 % out of the amount of decisions by local courts were allowed. In addition, courts considered 12600 submissions on extension of period of detention; out of them 11300 or 97, 1 % were allowed.

35500 persons were sentenced to imprisonment for certain term. Out of them, in result of trial, the courts detained 7700 persons and 27800 already had been in custody at a time of conviction.

The amount of persons released from custody following of trial reduced and consisted of 6100, including 3800 persons or 62, 6% in connection with conviction of person to other types (non-prison) of penalty, 37 persons in connection with acquittal. In result of appeal hearings, 511 persons were released from custody, by the court of cassation – 23 persons.

150 persons were released on bail by the courts[2].

To date, the court statistics for 2010 is unavailable. However, the First Deputy Chair of the State Department of Ukraine for Execution of Punishment Sergiy Sydorenko stressed that today the situation with allocation of persons in custody and the convicted is extremely complicated. Statistics of last years do not provide a background for optimistic forecast concerning their decrease: in period from January 2009 to April 2010 the amount of detained parsons grew to more than 8 thousand person and now it is more than 40 thousand, while there are no more than 36, 4 places in pre-trial remand centres according to the area normative consisting of 2, 5 square meters per one person. Such increase of the amount of detainees complicates greatly their allocation, material and medical-sanitary support.[3]

Growth of SIZO inhabitants has continued for two years and a half and remains fast and considerable.

While on January 1st , 2008 32110 persons were held in SIZO’s (a year before – 32 619), during 2009 the amount increased to 3882 persons more (+ 11, 4%) and for the next half a year of 2010 – 1996 persons more (+5, 24%). The same growth rate preserved to the end of the year may provide more than 10% of increase a year. Total increase for two years and a half consists of +24, 6% compared to the level of January 1st, 2008.

 

01.01.2008

01.01.2009

01.01.2010

01.07.2010

Total amount of persons in the institutions of the Department (reference: on January 1st, 01 222 254 persons)

149 690 (- 6, 87)

145 946 (- 2, 65)

147 716 (+1, 21)

to 1770 persons

150 724 (+2, 04%)

(+ 3008 persons)

Amount of persons in correction facilities (colonies)

115 393

109 961

108 187

109 238 (+0, 97%)

Amount of persons in SIZO

Reference: on January 1st 07 32619 persons

32 110 persons

34 148 persons

38 030 persons

40 024 (+5, 24%) (+24, 6% until January1, 08)

Amount of persons in educational colonies

1902

1606

1499

1462

Amount of persons imprisoned for life

1463

1538

1606 persons

1643 (+2, 3%) (+12, 3%)

It is possible to notice certain regional peculiarities in changes of the amount of SIZO detainees.

Considerable overload of SIZO is observed in Kyiv (+1065 persons), in Donetsk region (+1651 per three SIZO), in Kharkiv (+738) and in Simferopil (+713). At the same time, the overload rate for SIZO mentioned only increased for the last half a year.

Decrease of the contained amount in 2010 occurred only in five or six SIZO – in Odesa region, where there are two SIZO (-53), in Sumy (-25), in Zaporizhzhya region where there are also two SIZO (-10) and in Lviv (-4) and Mykolayiv (-8). If in Sumy it led to decrease of overload to the rate +238 persons, the same way as in Odesa region totally for two SIZO up to +42, in Lviv, Zaporizhzhya region (SIZO of Vilnianska town) and Mykolayiv in the beginning of the year SIZO were still not full.

Name of the establishment

Total amount of detained for January 01.2010

Total amount of detained for

July 1.2010

Places amount according to the normative

Change in a half a year

Actual SIZO occupancy + - to normative for January 01.2010

Actual SIZO occupancy + - to normative for July 01.2010

1

UVP of Vinnytsia city

1278

1331

1535

+ 53

- 257

- 204

2

 SIZO of Lutsk city

337

358

405

+ 21

-68

- 47

3

SIZO of Dnipropetrovsk city

2993

4092

3382

+ 99

- 389

- 370

4

SIZO of Kryvyy Rig city

1000

1080

- 80

5

SIZO of Donetsk city

2711

5944

1970

+ 384

+ 741

+ 1651

6

SIZO of Artemivsk city

2048

1630

+ 418

7

SIZO of Mariupol city

801

693

+ 108

8

UVP of Zhytomyr city

1252

1267

1959

+ 15

- 707

- 692

9

SIZO of Uzhgorod city

338

468

662

+ 130

- 324

- 194

10

SIZO of Zaporizhzhya city

1038

1587

953

- 10

+ 85

- 166

11

SIZO of VIlniansk city

559

800

- 241

12

SIZO of Ivano-Frankivsk city

569

616

617

+ 47

-48

- 1

13

SIZO of Kyiv city

3637

3915

2850

+ 278

+ 787

+ 1 065

14

SIZO of Kirovograd city

1074

1125

901

+ 51

+ 173

+ 224

15

SIZO of Symferopil city

2109

2197

1484

+ 88

+ 625

+ 713

16

SIZO of Lugansk city

1686

2453

 

1382

+ 163

+ 304

+ 403

17

SIZO of Starobilsk city

604

668

- 64

18

SIZO of Lviv city

1280

1276

1389

- 4

- 109

- 113

19

SIZO of Mykolayiv city

979

971

1199

- 8

- 220

-228

20

SIZO of Odesa city

2111

2659

1913

- 53

+ 198

+ 42

21

SIZO of Izmail city

601

704

- 103

22

SIZO of Poltava city

809

821

982

+ 12

- 173

- 161

23

SIZO of Rivne city

434

522

599

+ 88

- 165

- 77

24

SIZO of Sumy city

781

756

518

- 25

+ 263

+ 238

25

SIZO of Chortkiv city

238

258

406

+20

- 168

- 148

26

SIZO of Kharkiv city

3192

3546

2808

+ 354

+ 384

+ 738

27

SIZO of Kherson city

1264

1317

912

+ 53

+ 352

+ 405

28

SIZO of Khmelnytskyy city

551

628

636

+ 77

- 85

- 8

29

SIZO of Cherkasy city

720

755

657

+ 35

+ 63

+ 98

30

SIZO of Chernigiv city

432

621

420

+ 56

+ 12

- 122

31

SIZO of N. Siverski city

133

323

- 190

32

SIZO of Chernivtsi city

471

541

555

+ 70

- 84

- 14

TOTAL

38030

40024

36992

+ 1 994

+ 1038

+ 3 032

If it is taken to consideration that usually the elevated level of institutions occupancy (in general and the quantity of institutions in a region) is observed in the East and South of country, than the regular underfilling of SIZO in Zaporizhzhya region, Dnipropetrovsk and Mykolayiv looks rather unusual.

In total in Ukraine 17 SIZO remain underfilled and 15 SIZO are overloaded. Among the isolators that remain the most “spacious” are SIZO of Zhytomyr, Vinnytsia, Dnipropetrovsk, Mykolayiv, Vilniansk, Lviv, Poltava, Chortkiv in Ternopil region and Novgorod-Siverskiy.

To find out the reason for such a pronounced tendency requires particular analysis. It is possible to state that mostly it is a consequence of the lack of any reforms in pre-trial detention on remand.

No radical changes occurred in the regulation of arrest and detention on remand in context of criminal prosecution. The project of new Code of Criminal Procedure of Ukraine that had been approved by the National Commission for Strengthening Democracy and the Rule of Law on December 10, 2008 is still not passed to the Verkhovna Rada (Parliament) of Ukraine. Proceeding from the declarations by various officials it is impossible to find out clearly what is happening to the project.

Besides, in the judgments of European Court of Human Rights several systematic problems of national legislation and practices are traced requiring immediate resolution.

1.1.        Unfounded and unregistered detention

Several times the UN Committee against Tortures (CAT) and European Committee for Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) together with national human rights institutions pronounced for the problem of unregistered (informal) detention widely applied by law enforcement bodies almost in every criminal file.

The European Court considered the problem in several cases. In the case Osipenko v. Ukraine (no. 4634/04, 9 November 2010) it was established that the applicant was in the premises of police station for several hours before he became a suspect. The Court considered that there were no grounds for keeping him at police and the detention was unregistered. The Court perceived as non-realistic an argument of supposedly voluntary staying in the police station.

Similar infringement was established in the case of Lopatin and Medvedskiy v. Ukraine (nos. 2278/03 и 6222/03, 20 May 2010).

The issue of unregistered unfounded detention is also considered application against Ukraine by Kardava (no. 19886/09), Koval and others (no. 22429/05), Beley (no. 34199/09), Savin (no. 34725/08), Omelchuk (no. 42195/04), Kondratyev (no. 5203/09), Smolik (no. 11778/05), Tretyakov (no. 16698/05) communicated to the Government.

A special aspect of unfounded detention is present in the case Şarupici against Moldova and Ukraine (no. 37187/03), dealing with the detention of the applicant by law enforcement officials and his rendition to Moldova law enforcement officials beyond the official extradition procedure.

Another problem of unfounded detention becoming more and more topical is set up in the case Chosta v. Ukraine (no. 35807/05). The case deals with two episodes of detention of the applicant for several hours by company guards on suspicion of his being intoxicated by alcohol.

1.2.  Use of administrative arrest for criminal prosecution purposes

This problem was revealed in a rather detailed manner in the reports of CAT[4], CPT[5]. It was also indicated in previous reports of human rights organizations “Human Rights in Ukraine” in 2004-2008.

 The European Court established the violation of right to liberty through misuse of administrative arrest in cases of Doronin v. Ukraine (no. 16505/02, 19 February 2009), Garkavyy v. Ukraine (no. 25978/07, 18 February 2010), and Oleksiy Mykhaylovych Zakharkin v. Ukraine (no. 1727 /04, 24 June 2010). In all these cases, administrative detention andor arrest was prior to the detention under criminal procedure.

Similar issues are raised in cases given to communication to the government, in particular in case Kvashko v. Ukraine (no. 40939/05).

1.3.  Absence of justification in the decisions on detention on remand

Absence of any justification for the decisions on detention of somebody on remand is also a systemic problem in legal system of Ukraine.

In the case Khayredinov v. Ukraine (no. 38717/04, 14 October 2010) national courts did not provide sufficient backgrounds for detention of the applicant and did not consider possibilities to apply any other preventive measures.

Similar violations were established in cases Feldman v. Ukraine (nos. 76556/01 and 38779/04, 8 April 2010), Vitruk v. Ukraine (no. 26127/03, 16 September 2010), Znaykin v. Ukraine(no. 37538/05, 7 October 2010) and several others.

1.4.   Absence of time-limit for detention in decision

Another problem is detention after quashing the trial court conviction. As a rule the higher court, setting aside a conviction and sending the case to additional investigation or to the new trial, at the best limits its decision to one phrase: “to preserve the prevention measure” without making any justification and even not indicating during what period of time will such a measure remain valid. Another problematic situation is when courts while extending detention during the trials do not indicate the duration of such a measure. This is the violation of right to liberty, provided by Article 5 of the Convention on Human Rights.

Such a violation was established by the European Court in several cases, particularly in cases of Doronin v. Ukraine (no. 16505/02, 19 February 2009), Znaykin v. Ukraine(no. 37538/05, 7 October 2010), Garkavyy v. Ukraine (no. 25978/07, 18 February 2010), Feldman v. Ukraine (nos. 76556/01 and 38779/04, 8 April 2010), Gavazhuk v. Ukraine (no. 17650/02, 18 February 2010), Buryaga v. Ukraine (no. 27672/03, 15 July 2010), Vitruk v. Ukraine (no. 26127/03, 16 September 2010).

Similar circumstances are considered in communicated cases Oleynikova (no. 11930/09), and Gerashchenko (no. 20602/05)

 

1.5.   Retaining in custody between the ending of pre-trial investigation and preliminary court hearing

In the report “Human Rights in Ukraine – 2008” it was mentioned that in the decisions of the European Court of Human Rights in cases Svershov v. Ukraine(no. 35231/02, 27 November 2008), Solovyov and Zozulya v. Ukraine (nos. 40774/02 and 4048/03, 27 November 2008), Yeloyev v. Ukraine (no. 17283/02, 6 November 2008) the systematic problem in Ukrainian legislation was named, i.e. that persons, whose files are passed to the court remain retained in custody without any court decision, only based upon the fact of the file having been passed to the court.

In similar circumstances the violation of the Article 5 § 1 has been established in the case of Mykola Kucherenko v. Ukraine (no. 16447/04, 19 February 2009), Gavazhuk v. Ukraine (no. 17650/02, 18 February 2010), Vitruk v. Ukraine (no. 26127/03, 16 September 2010).

In 2010 the problem became so much clarified in practice of the European Court, that already the case of Rudenko v. Ukraine(no. 5797/05, 25 November 2010) was considered by the Committee according to simplified procedure as “clone” case.

Presently cases of Felenko against Ukraine (no. 35188/05), Mustafayev against Ukraine (no. 36433/05), Veniosov against Ukraine (no. 30634/05), Kravchenko against Ukraine(no. 49122/07) are sent to communication to the Government on similar issues.

1.6.   Extended bringing to judge

The unjustified late bringing to a judge of a person detained on suspicion of having committed a crime is still a problem. The legislation provides very long term of delivery – 72 hours and law enforcement bodies attempt to use it fully, rarely delivering a person to a court earlier. Besides, officials often apply illegal unregistered detention and administrative detention as ways to extend time of delivery to a court (see chapters 1.1. and 1.2 above).

Another, even bigger problem is an urgent bringing to a judge of a person detained under court order issued during the trial of the case.

Such a problem was considered by the European Court in the case Kornev and Karpenko v. Ukraine (no. 17444/04, 21 October 2010). The trial court during hearing changed the prevention measure to Kornev to detention. He was arrested and brought to the court only eight days after the arrest when the court assigned next hearing of the case. European Court established violation of the Article 5 § 3 of the Convention, indicating that such a term did not correspond to the requirements of “urgency”.

1.7.   Unjustified long detention on remand

The problem of unjustified long detention on remand, absence of sufficient grounds for such a measure, ignoring any opportunity to apply other preventive measure also remain unchanged during many years. Bail practice has not become widespread in criminal legal procedures.

Therefore, it is not surprising that decisions of the European Court on the issue become standardized. In the case of Sergey Volosyuk v. Ukraine (no. 1291/03, 12 March 2009), where the applicant was detained for almost for five years it was established the violation of Article 5 § 3 of the Convention. Similar violations were established by the Court in judgments against Ukraine in cases of Roman Miroshnichenko (no. 34211/04, 19 February 2009), Shalimov (no. 20808/02, 4 March 2010), Feldman (nos. 76556/01 and 38779/04, 8 April 2010), Moskalenko (no. 37466/04, 20 May 2010), Vinokurov (no. 2937/04, 15 June 2010), Buryaga (no. 27672/03, 15 July 2010), Vitruk (no. 26127/03, 16 September 2010), Khayredinov (no. 38717/04, 14 October 2010), Bilyy (no. 14475/03, 21 October 2010), Kornev and Karpenko (no. 17444/04, 21 October 2010), Petukhov (no. 43374/02, 21 October 2010), Molodorych (no. 2161/02, 28 October 2010), Osipenko (no. 4634/04, 9 November 2010).

Out of cases passed to communication on the issue it is possible to mention cases of Klishyn (no. 30671/04), Korneykova (no. 39884/05), Todorov (no. 16717/05), Nechiporuk and Yonkalo (no. 42310/04), Gerashchenko (no. 20602/05), Kondratyev (no. 5203/09), Ustyantsev (no. 3299/05), filed against Ukraine.

1.8. Absence of possibility to appeal against detention on remand

In the report “Human Rights in Ukraine – 2004” is was indicated that Ukrainian legislation did not provide such an important guarantee for persons detained in custody as a right to initiate periodically before the court a hearing on legality of detention, although this guarantee is provided by Article 5 § 4 of the Convention on Human Rights and by the Article 29 of the Constitution.

Appeal to the court against detention during pre-trial investigation and the period between passing the file to the court and preliminary court hearing is still impossible. It resulted in establishment of the violation of Article 5 § 4 of the Convention in cases Sergey Volosyuk v. Ukraine (no. 1291/03, 12 March 2009), Mironenko and Martenko v. Ukraine (no. 4785/02, 10 December 2009), Feldman v. Ukraine (nos. 76556/01 and 38779/04, 8 April 2010).

The problem of access to a court is also related to the problem of the quality of court hearing. In several cases the Court established violation of Article 5 § 4 of the Convention because the courts did not justify duly their decisions. In case of Molodorych v. Ukraine (no. 2161/02, 28 October 2010) the Court, having established that national courts did not provide any argument justifying continuing detention, came to conclusion that the problem was not in episodic reluctance to study the legality of the measure, but there was a problem of the lack for precise and foreseeable procedure on national level.

In the case Rudenko v. Ukraine (no. 5797/05, 25 November 2010) the Court established that as far as the applicant was detained in custody already after passing the file to the court without any decision, thus he had no opportunity to appeal against such detention.

The same problem is under consideration in communicated case Kardava against Ukraine (no. 19886/09)

1.9.  The right to compensation

In numerous mentioned decisions of the European Court concerning various violations of Article 5 §§ 1-4 it was also established the violation of Article 5 § 5 of the Convention, in such a way it was acknowledged the absence in Ukraine of right and system of compensations for unlawful detention.

An interesting issue of right to compensation has been raised in the communicated application Shulgin against Ukraine(№. 29912/05). The applicant was convicted for two crimes to seven years of imprisonment. The Supreme Court after extraordinary review changed the sentence, excluding one of the charges as unproved and aggravating element from the other charge and mitigating the total sentence to 5 years of imprisonment. An attempt of the applicant to obtain a compensation for illegal conviction in national court was unsuccessful.

2.   Detention of aliens

CPT during their visit on 2009 noted that persons detained in compliance with the legislation on aliens were not provided with basic rights for the detainees.

Right to inform relatives, right to access a lawyer, right to information concerning the grounds for detention, their status and rights including the appeal procedures available to the detained person were not provided to the full. In addition, it was indicated that in most cases, the right to translation was not provided and aliens had to sign a bunch of documents in Ukrainian language they could not understand.

Concerning the right to lawyer, CPT noted that it was provided only with sporadic assistance from the NGO’s.

As to the communication with the outer world, CPT noted that such an opportunity was considerably disrupted due to a practice of cell phones confiscation from the detained and due to absence of any conditions for attending the detained by third parties.

In addition, it was indicated that the detained had no opportunity to communicate personally with diplomatic missions and consular institutions of their home countries.

3.   Application of administrative detention with a purpose of rights and liberties restriction

In 2010, the practice of administrative detention and conviction for peaceful protest was renewed, which practice had not been observed since 2004.

In May-June of 2010, dozens of participants of peaceful manifestation against cutting the trees on Central Gorky Park in the city of Kharkiv were detained. Some of them were convicted later for gross disobedience to the legal requirement of the police officer; arrest was applied to several persons as a form of punishment. In particular, Denys Chernega and Andriy Yevarnytskyy were convicted to 15 days of arrest (later this term was reduced by the Court of Appeal to 9 days). The circumstances indicated that in fact they were punished for the participation in peaceful rally to express protest against actions of local authorities. It provided background to “Amnesty International” to declare them as “prisoners of consciousness”. At the same time, several persons detained by the police together with them were acquitted by the court.

Trials on these circumstances gave evidence that elements of the offence “gross disobedience to the lawful requirements of the police officers” were not defined clearly, providing the authorities to apply such accusations in order to impede peaceful implementation of constitutional rights of people.

Further, the police also attempted to interfere with the public views expression by the activists.

On August 30 in Kharkiv, the police detained two activists who were distributing leaflets near the exit from “University” metro station. Their explanations were taken, than they were released, the leaflets were withdrawn.

On September 2, “Berkut” police special squad soldiers detained seven activists of the civil protest movement “The Green Front” in time they were distributing in city centre the leaflets containing critique addressing the Head of Kharkiv Region State Administration and acting mayor of Kharkiv. The detained were brought to the Central Division of the Police of Dzerzhynskyy District Police Station, but the reason for the detention was not explained. As soon as mass media representatives appeared, “Berkut” soldiers disappeared. After certain time the activists were released, the leaflets were withdrawn.

As far as the police did not manage to find justification to the detention, the representative of Public Relations Centre of the Main Direction of the Ministry of Internal Affairs in Kharkiv region informed that people distributing the leaflets came to the police on their own to provide explanations, and afterwards they were released.

On October 12, 2010 from 11.30 to 12.40 in the city of Lviv a civil organization “Guards of the Law” held a picket in front of the Prosecutor’s office with a demand to investigate crimes in the field of housing and communal services with a motto “Down with a corruption in the Prosecutor’s office!”. Picket’s organizers – the head of the organization Oleksiy Verentsov and Igor Tanyachkevych provided information on peaceful gathering for two times: several months before on series of picket’s indicating its precise dates and two days before the event itself.

While at the moment of peaceful gathering on October 12th there was no court ruling on prohibition of the event, police officials demanded to stop the picket, explaining that organizers had no permission for conducting a peaceful gathering, although according to the Article 39 of the Constitution of Ukraine the organizers have to inform about the event and should not obtain permission.

On October 14th two organizers of the picket were detained by the police, taken to the court that sentenced them to three days of administrative arrest for gross disobedience to the lawful requirement of the police and violation of the order of organization of peaceful gathering (Articles 185 and 185-1 of the Code on Administrative Offences).

It confirms one more time the use of Article 185 of the Code of Ukraine on Administrative Offences as a manipulative instrument to suppress civil liberties.

4.  Detention of minors

On December 21, 2010 the European Court for Human Rights issued a ruling in case Ichin and others v. Ukraine (nos. 28189/04 and 28192/04).

On January 5, 2004 two children, born 1990 and 1991 were detained on suspicion of theft of candies and other foodstuffs in high school canteen. They acknowledged their guilt and gave back a part of stolen. Later the court ruled to detain boys in placement centre, considering them capable to commit socially dangerous actions, evade the investigation and interfere with investigation. They remained in the placement centre for 30 days.

The European Court ruled that arrest and detention two children in custody was not justified by any reason indicated in Article 5 § 1 of the Convention. As far as the children could not be accounted to criminal liability, they could not be detained for the purposes of Article 5 § 1(с) of the Convention. Also their detention was not justified under Article 5 § 1(d) of the Convention as far as no “educational supervision” required by this paragraph was not provided during the detention.

The way of keeping the children in placement centres remains unchanged since the time when the events in the case Ichin and others v. Ukraine took place, remaining unjustified in a same way from the point of view of the Convention. Moreover, the Law of Ukraine № 2507-VI, dated September 9, 2010 provides amendments to the Code of Criminal Procedure, allowing detention of minors in the placement centre up to 60 days “if there are reasons for it”. The law does not indicate what reasons may justify extension of this term.

But also it should be mentioned that the same Law makes amendments to the Article 7-3 of the Code of Criminal Procedure not allowing (at least in theory) detaining in placement centres the children suspected of commitment of “socially-dangerous actions”, providing up to 5 years of imprisonment. It may narrow the application of such a measure but it does not make it more legitimate from the point of view of Convention, lacking legitimacy proceeding from the ruling on case Ichin and others against Ukraine.

The Law provides reasonable clause, that “in case when the circumstances provided by the clause disappeared, for further detention of the child in a placement centre or for clarification of the circumstances indicated in part 5 of the present Article, the investigator or the court immediately solves an issue on ending of further child detention in a placement centre”. However, as far as Criminal Procedural Code up to now does not provide an opportunity to appeal against detention (see chapter 1.8 above), the implementation of the clause depends totally on good will of particular investigator.

5.    Detention of vagrants

The problem of detention based on suspicion of vagrancy was indicated by us in yearly reports starting from the year 2004. The problem remains unsolved for many years. It had been indicated in numerous reports of international organizations.

On February 9, 2009 report of UN Working Group on Arbitrary Detentions was published[6] and the issue of this type of a detention raised concern again. The Group noted that term “vagrant” is not determined by the law and in practice is related to anyone unable to show an identification document, stopped by the police on the street”.

Along 2009-2010, certain changes in legal regulation of such detention took place.

The Law of Ukraine № 1188-VI, dated March 19, 2009 made amendments to the Article 5 of the Law of Ukraine “On the Police”. According to these amendments, such a detention may occur only by a court warrant.

Constitutional Court of Ukraine in his decision of 29 June 2010 took even more radical step and acknowledged the clause providing the police with the power to detain on suspicion of vagrancy as a non-constitutional one. The Court proceeded in particular from the fact that the clause was a rudiment of the system that had existed at times of criminal liability for vagrancy and it did not correspond to the requirement of legal certainty given by the Constitution of Ukraine and Convention on Human Rights.

6.    Detention for the purpose of extradition

After several judgments of the European Court of Human Rights[7] there were some changes adopted to the legislation of Ukraine that could be considered as general measures to fulfil these judgments.

On May 21, 2010 Chapter 9 “Extradition of a person” is added to the Code of Criminal Procedure containing, among other, clauses on detention, on court ruling for temporary arrest, extradition arrest, certain rules of the procedure for the consideration of submission for arrest and other guarantees for a person detained in connection with the extradition inquiry.

Also Article 11 of the Law “On the Police” after making amendments on May 11, 2010 allows detention of “aliens and persons without citizenship wanted by law enforcement authorities of other countries as suspects, accused of committing a crime or as the convicted evading criminal punishment – in the order and for period provided by legislation of Ukraine and international agreements of Ukraine”.

It is needed to mention that during 2004-2010 the Supreme Court of Ukraine and General Prosecutor’s Office of Ukraine attempted to regulate somehow the issue of detention and arrest for the purpose of extradition. Plenary session of the Supreme Court of Ukraine adopted a resolution № 4 dated April 25, 2003 “On some issues of legislation application regulating the order and terms of detention (arrest) of persons pending consideration of issue of their extradition”. The order of Prosecutor General of Ukraine dated May 23, 2007 № 8гн-1 approved the “Instruction on the order of consideration by the bodies of the prosecutor’s office of Ukraine the requests for extradition of offenders”

However, according to the conclusion of the European Court repeated many times in rulings concerning Ukraine this regulation lacked “quality” that attributed to the “law” in the meaning of Court case law.

Besides the fact that now the law provides automatic review of the reasons for detention pending extradition no less than once every two months, clause of the Article 463 of the Code of Criminal Procedure should be mentioned providing that “by claim of person being under extradition arrest or his/her lawyer or legal representative the judge having jurisdiction over place of person’s detention reviews the availability of the grounds for releasing a person not more often than one time a month”.

It is worth mentioning that to date this clause remains the unique provision in legislation of Ukraine implementing on national level requirements of Article 5 § 4 of the Convention concerning the right of the detained to appeal against his/her detention (see for comparison chapter 1.8 above).

Although it is hard to make definite conclusions on quality of provisions under discussion, as far as short term of their action does not allow analyzing court and administrative practice of its application, however such a considerable contribution of the lawmaker to the fulfilment of European Convention of Human Rights should be welcomed.

Compliance of new legislation with the Article 5 of the Convention of Human Rights may be tested very soon in cases Far Abolfazl Abbas Mokallal against Ukraine (no. 19246/10), Molochko against Ukraine (no. 12275/10), Dzhaksybergenov against Ukraine (no. 12343/10)and Dobrov against Ukraine (no. 42409/09) communicated to the Government of Ukraine.

7.    Attempts to renew methods of punitive psychiatry

Trade union and public activist Andriy Bondarenko had no mental diseases records. After the attempts to acknowledge him as mentally disable had started, he passed through three psychiatric examinations in order to prove his mental capacity, the last one – in October, 2010.

Among the reasons provided by Vinnytsia Region Prosecutor’s Office and Vinnytsia Region Mental Institution named after Yuschenko, demanding his placement to hospital there are “sharp awareness of his personal rights and aggressive persistent readiness to protect them inadequately to real situation (only in 2008 he filed 91 complaints to the prosecutor’s office)”.

In 2007, Prosecutor’s Office of Vinnytsia Region addressed local healthcare institutions twice to get an inquiry for forced psychiatric examination of Andriy Bondarenko. The judge denied first inquiry in July 2007 based upon the erroneous inquiry formulation by the hospital. Second inquiry was denied in August of the same year after Andriy Bondarenko went to the psychiatrist of Vinnytsia Regional Hospital and obtained a certificate that he was healthy.

In January 2009, he was detained at his house and accused of denial to show the ID. He was convicted to 10 days of administrative arrest and on the seventh day of the arrest was again taken to the court where the third inquiry to psychiatric examination was considered. The hospital declared that Andriy Bondarenko earlier addressed them for psychiatric help (although he denied it) and presented a document authorizing the doctor to represent Andriy Bondarenko’s interests on the court session. This third inquiry was overruled by the court.

In August 2010, after the fourth inquiry concerning his examination Andriy Bondarenko went to the city of Gaysyn in Vinnytsia region, where he went through psychiatric examination to prove his mental capacity. He obtained the certificate confirming his mental health. The court overruled the inquiry to forced psychiatric examination. The prosecutor’s office appealed that decision and, besides opened a criminal file against Andriy Bondarenko accusing him of use of false documents during examination (later the file was closed).

The Court of Appeal cancelled the ruling of the first instance court and in spite of the availability of several medical certificates on complete mental health of Bondarenko ruled to send him for psychiatric examination to Yuschenko mental institution.

In present Bondarenko is under constant threat of detention and placement to mental institution.

The story reminds very much of application of punitive psychiatry methods widely used in soviet times for repressions against dissidents and public activists. Even formulations, provided by psychiatrists are almost word to word identical to well known psychiatric examinations of the Institute named after Serbskyy, that led to imprisonment in mental institutions of many people who dared to stand for their rights in a way “inadequate to real situation”.

8.   Independent mechanisms of control over police actions

In August 2009, Ukraine provided additional information concerning fulfilment of recommendations by UN Human Rights Committee.[8] In particular, Ukrainian government referred to the fact that for creation of independent mechanisms to file complaints on police officials’ actions “in January 2008 within the MIA structure it was created the Direction for Monitoring Human Rights in the Activities of Internal Affairs Agencies. The aim of the Direction was to establish a system of institutional control over human rights protection in activities of agencies and divisions of internal affairs in compliance with international law standards.

The Direction included assistants to the Minister of Internal Affairs located in all regions of Ukraine, being completely independent from the direction of local internal affairs agencies. During 2008, the assistants to Minister consulted 2677 citizens, accepted 1827 applications of citizens concerning unlawful actions by police officials, 1233 internal inspections were initiated on the facts of possible human rights violations by police officials.

In five first months of 2009 assistants to the Minister of Internal Affairs on human rights received 2677 visitors, 1827 applications of citizens concerning unlawful actions by police officials, initiated 144 internal inspections”.

In Commentaries of Ukraine on Concluding Observations of the UN Human Rights Committee[9] it was also mentioned that “for the last years the Government of Ukraine took certain steps towards human rights encouragement in activities of internal affairs agencies including the following:

in October 2004 a position of counsellor to the Minister of Internal Affairs on Human Rights and Gender Issues was created;

in December 2005 a Civil Human Rights Council at Ministry of Justice was founded together with similar councils at the directions of the Ministry in the regions. Civil Councils were collegiate bodies, combining work of civil society representatives and institutions applying the law in order to find out the most acute problems connected with human rights observance and work of internal affairs institutions and also in order to elaborate strategies to overcome them;

in August 2006, in order to provide independent inspection of places of detention of the convicted and arrested persons, mobile groups to monitor observation of constitutional rights and liberties of citizens started to work; these groups represent a unique instrument of civil control over internal affairs agencies in Ukraine. It was considered that these mobile groups were the analogue to national preventing mechanisms provided by Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;

in January 2008, the Direction on Monitoring of Human Rights in the Activities of Internal Affairs Agencies was organized. Its aim was to create the institutional monitoring system for human rights protection in the activities of internal affairs agencies according to international standards”.

In March 2010, after appointment of new Minister of Internal Affairs the apparatus of the Ministry of Internal Affairs was reorganized. The most notable consequence of the reorganization was reduction of the Direction on Monitoring of Human Rights and regional minister’s assistants. Not once the public council at MIA in 2010 was gathered and mobile work groups’ activity in almost all the regions was stopped.

Recommendations

1. Allow publication of CPT report according to the results of visit from September 9 to 21, 2009.

2. Intensify the adoption of the law “On Legal Aid” assuring a duty to provide free legal assistance:

– to persons detained for violation of rules on stay of aliens and with the purpose of extradition;

– to minors, detained by any reasons;

– to persons who are under any procedure related to the determination of their mental health and consequences of such definition.

3. Intensify the adoption of the new Code of Criminal Procedure of Ukraine or introduce into the Code in force provisions fully implementing the requirements of Article 5 of the European Convention and preventing systematic violations established in judgments of the European Court of Human Rights. In particular:

1) to introduce amendments to legislation which would make detention without court warrant the exception, this being in compliance with the restrictions provided for by Article 29 § 3 of the Constitution

2) to bring the time limit for bringing a person before the court, set down in Article 106 of the CPC, into line with Article 29 of the Constitution, taking into account the time necessary for the judicial examination and ruling;

3) to define the starting point for detention on suspicion of committing a crime or an administrative offence based on the actual circumstances of the case, not on the decision of a law enforcement officer;

4) to include in the subject matter of hearings where the question of remand in custody or release is to be decided all circumstances touching on whether detention is warranted, including the following:

– grounds for the suspicion or charge, in connection with which the prosecution demands that the suspect (accused) be remanded in custody;

– grounds for the period in which a person is held in custody by a law enforcement agency prior to being brought before a judge.

6) to establish a clear presumption in favour of a person’s release and provide that the onus of providing proof of grounds for remand in custody be shifted to the prosecution;

7) to introduce provisions would exclude remand in custody or its extension based on purely hypothetical assumptions;

8) to formulate the risks   in connection with which detention is allowed in such a way as to exclude remand in custody depending on the position of accused and tactics employed by the defence;

9) to introduce provisions that would exclude the practice of detaining a person after his/her release by a judge on the basis of «concealed» accusations;

10) to exclude from the legislation the institution of “extension of the detention” by the judge or at list to introduce required changes to the legislation in order to exclude the practice of taking back the person to the police body after the court ruling on detention prolongation.

11) to make amendments to the Part 4, Article 165-2 of the Criminal Procedural Code in order to exclude retaining in custody without control by the court for more than a period, established by Article 29 § 3 of the Constitution;

12) to provide to persons in custody right for periodic review of grounds for their detaining in custody;

13) to establish strict and detailed rules of the procedure for the consideration of the issue of detention or release, in particular to provide:

− obligatory participation of a detainee in any hearing considering an issue of his/her detention or release;

− obligatory provision of the person deprived of liberty and his/her lawyer with the copy of submission by investigator (prosecutor) on his/her detention or prolongation of retaining in custody;

− right of a person deprived of liberty and his/her lawyer to study the materials justifying the submission on his/her detention or extension of his/her retaining in custody;

14) to elaborate procedures that would contribute to bail application instead of detention;

15) to determine in a more precise way powers of judge concerning the detention, in particular to establish more strict criteria to determine those extraordinary cases, when the judge may apply the detention beyond his regular powers;

16) to reduce the final term of detention during the pre-trial investigation and establish total final term of staying in custody;

17) to adjust regulations on administrative detention in compliance with the requirements of the Article 29 of the Constitution;

18) to introduce the amendments to legislation excluding administrative detention application for the purposes of criminal prosecution, for example, providing obligatory release of the suspect of administrative offence commitment prior the trial;

19) to introduce the amendments to the Code of Ukraine on Administrative Offence (in particular to Article 263 of the Code) and to other legislative acts that would exclude retaining a person in custody without court decree for more than 72 hours;

4. Introduce national prevention mechanisms in compliance with the Optional Protocol to the UN Convention against Torture.

 

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[1] Prepared by Arkadiy Buschenko. Attorney, Head of the Board of the Ukrainian Helsinki Human Rights Union.

[2] http://scourt.gov.ua/

[3] http://kmu.gov.ua/punish/control/uk/publish/article?art_id=68600&cat_id=47123

[4] Seeforexample, ReportontheresultsofvisitonOctober9-21, 2005, CPT/Inf (2007) 23, § 13.

[5] Seeforexample, ConclusionsandrecommendationsoftheCommitteeontheresultsofconsiderationoftheReport to the Government of Ukraine on the 38th session of the Committee CAT/C/UKR/CO/5, § 9.

[6] http://www2.ohchr.org/english/bodies/hrcouncil/docs/10session/A.HRC.10.21.Add4.pdf

[7] Soldatenko(no. 2440/07, 23 October2008), Svetlorusov (no. 2929/05, 12 March2009), Dubovik (nos. 33210/07 и 41866/08, 15 October2009), Kaboulov (no. 41015/04, 19 November2009), Koktysh (no. 43707/07, 10 December2009 ), Kreydich (no. 48495/07, 10 December2009), Puzan (no. 51243/08, 18 February2010), Kamyshev (no. 3990/06, 20 May2010)

[8] CCPR/C/UKR/CO/6/Add.2, 28 August 2009

[9] CCPR/C/UKR/CO/6/Add.1, 21 August 2008

 

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