Human rights in Ukraine – 2006. III.The right to liberty and security

[1]

Legislation on protecting the right to freedom from arbitrary detention and arrest did not change in 2006 and the first half of 2007, nor was there any change in practice. Just as before, the number of people detained on suspicion of committing a crime is considerably higher than the number of those actually convicted. Detention without a court order remains the rule and those cases where a court order is obtained – the exception. This is despite the clear statement in Article 29 of the Constitution to the contrary. The vast majority of all «criminal-procedure» detentions are thus unlawful. One of the objectives of such detentions remains obtaining a confession with the entire detective inquiry and criminal investigation system built on gaining such confessions. The means used to obtain these are those same unlawful methods which have become habitual for the police, the prosecutor’s office and the courts.

For example, the practice remains widespread of unregistered detention, when a person is taken by force to an investigative body, however the detention is not formally registered, and the detained person remains in the control of the police without any of the guarantees inherent in the status of a person detained. Observations suggest that such practice has become even more common since the entry into force of the Law from 12 January 2005 which establishes much stricter time restrictions on the period a detained person may be held by the police. Such unregistered detention is not treated by the court and prosecutor’s bodies as deprivation of liberty and therefore people who have become the victims of similar detentions are virtually without legal defence.

These unregistered detentions are possible given the fact that the beginning of «criminal-procedure» detention is considered to be the moment at which a protocol of detention is drawn up. When this takes place is entirely at the discretion of the official running the investigation.

Order № 300/73 of the Ministry of Internal Affairs [MIA] and the State Department for the Execution of Sentences from 23.04.2001 «On observance of the law when detaining persons suspected of an offence, the choice of pre-trial detention as a preventive measure and observance of the statutory periods for detention and custody during pre-trial investigations» remains in force. Item 2.5 of this Order classifies the release of individuals from temporary holding facilities (ITT) due to suspicion against the person having proved unfounded as a violation of legality. This provision is encouraging police officers to use «shadow» detention. They detain a person whom they suspect of having committed a crime, take them to the police station and «work» with them, often applying unlawful forms of pressure, and then either formally fill in a protocol of detention or release the person, having extracted a signed statement that the person has no complaints against the police.

 At the same time norms of the Constitution and criminal procedure legislation stipulating the right for a third person to be informed and a lawyer called are ignored. The detained person is supposedly questioned as a witness, and legislation does not stipulate the right to a lawyer in the case of witnesses. The refusal of a person detained to give evidence on the basis of Article 63 of the Constitution and Article 69-1 of the Criminal Procedure Code [CPC], or insistence on only answering questions with a lawyer present, as a rule enrages the police officers and prompts the use of torture. Moreover, law enforcement personnel try to twist the meaning of Article 63 of the Constitution. For example the MIA management sent staff at the local level an unlawful explanation as to the sense of this Article. After presenting the norms of Articles 69 and 69.1 of the CPC and Article 63 of the Constitution, it literally states:

«The following are entitled to refuse to give testimony:

1. members of the family, close relatives, adopted children or adoptive parents of the suspect, accused or defendant;

2. a person who would incriminate him or herself through this testimony, members of his/her family, close relatives, adopted children or adoptive parents, of having committed a crime..[2]

Effectively, according to such an interpretation, any person who uses the right to refuse to testify is guilty of a crime or the relative of a criminal.

The lack of a lawyer deprives the detained person of any defence. S/he is totally dependent on law enforcement officers. This gives the latter the chance to apply psychological or physical pressure, as well as torture.

 Furthermore the presence of a lawyer during interrogations is a legal requirement for certain categories of detainees (minors, people who have psychological illnesses, the rehabilitated, etc).

Legal assistance through the appointment of a defence lawyer paid for by the State. This requirement is not fulfilled in practice as can be seen by the payments for such work by lawyers actually allocated from the Budget. According to figures from the Ministry of Justice, in 2006 20 Regional Departments of Justice sent information about services provided by lawyers in criminal prosecutions amounting to 163.7 thousand UAH.[3] Even the pitiful amount of 2 million UAH foreseen in the Budget for legal aid in criminal cases in 2006 was not spent due to the extremely inefficient system for providing such aid. The system allows for payment of 15 UAH for one day’s work, and in order to receive this pathetic amount, the lawyer must present three documents to the Regional Department of Justice. It would therefore be more accurate to speak of the effective lack of State-funded legal aid for people detained.

The problem of people turning down their right to defence concerns not only those detained but all individuals viewed as suspects (accused). The waiving of ones right to defence is not envisaged in current legislation. Yet law enforcement officers use an unlawful interpretation of Article 46 of the CPC to encourage people to waive this right.

Article 46 of the CPC states that the suspect, person accused, or defendant has the right at any moment of the proceedings to reject invited or appointed defence counsel (i.e. to reject a person, not defence per se). This rejection is allowed only at the initiative of the suspect, person accused, or defendant and does not deprive the person of the right to ask for the services of another defence lawyer at later stages of the trial. It is clear that the article merely entitles an individual to turn down a specific invited or appointed defence lawyer. Yet law enforcement officers interpret this norm as forcing an individual for turning down defence altogether, when defence counsel has not yet been invited or appointed. This practice is so widespread that forms have even been prepared with protocols rejecting legal defence. Each investigator has such a form ready on his/her computer. The grounds are given as being: «I will defend my rights myself». As we see, law enforcement officers thus replace the «rejection of a lawyer» with «rejection of defence» which is nowhere envisaged in the law.

Previously, in order to acquaint a person with their rights and obligations, those detained were handed two sheets of paper with the texts of some Articles of the Constitution and the CPC. MIA №338 from 18 April 2006 approved instructions regarding a list of basic rights which police officers must read out when detaining a person on suspicion of having committed a crime, and instructions on the list of basic rights which must be read out in the case of administrative arrest. However, in our view, this change has not improved the level of protection of those detained.

The courts can extend the period of detention to 10 days, and, at the application of the detained person, to 15 days. Judges often apply this measure so that the police can obtain additional evidence of the person’s being implicated in a crime, if the evidence provided by the prosecution is insufficient for making a decision to remand the person in custody.

The police also make use of administrative arrest for criminal investigations. For example, if a person refuses to go to the police station without the proper summons, they are forcibly taken there, and later a protocol on an administrative offence is drawn up under Article 185 of the Code of Administrative Offences (CAO).for the persistent refusal to comply with the lawful instructions or demand of a police officer carrying out his/her duty. This is punishable by a fine or corrective work, and if the circumstances of a case, taking the individual offender into account, make the use of these measures insufficient, by administrative arrest for up to 15. The courts usually support the use of administrative arrest regardless of the offender. This is encouraged by the fact that according to Article 287 of the CAO, the judge’s ruling on imposing administrative punishment is final and not subject to appeal. The police in this way achieve their aim of keeping the suspect under their total control for the entire period of the administrative penalty, and «working» with the person to obtain the needed confession. Overall during 2006, 31,407 people were detained with administrative protocols drawn up under the offence defined in Article 185 of the CAO.

Administrative arrest for criminal investigations is also used by applying Article 263 of the CAO. . In such cases a suspect is detained for a period of up to 3 days under Article 263, then when this period expires, is detained again, this time under Article 115 of the CPC. It is also quite common for employees of law enforcement agencies, after the court has refused to allow an application for remand in custody and has freed the detainee to immediately detain the person on «new suspicion»

Law enforcement agencies retain considerable authority to hold those suspected of having committed an administrative offence for a fairly prolonged period. Article 263 of the CAO states that «individuals who have infringed regulations concerning the use of narcotics or psychotropic substances» can be detained for a period of up to 10 days with the sanction of the prosecutor’s office, if the offender does not have documents proving his or her identity.» Nor is a warrant required for detaining and holding vagrants or beggars in custody on the basis of Article 11 of the Law «On the police». Through the lack of clarity in legislation with regard to the term «vagrant», many people are held in centres for the reception and distribution of vagrants purely on the grounds that they could not, when asked by a police officer, produce documents confirming their identity. We have come upon people in centres for the reception and distribution of vagrants who had a permanent place of residence and a steady job. It should be mentioned that over the last two years the number of people held in MIA custody on suspicion of being vagrants or begging has significantly fallen. According to MIA figures, throughout 2003 23.6 thousand people were held, in 2004 – 32.2 thousand, in 2005 – 17.2 thousand, while in 2006 the figure stood at 15.4 thousand.[4].

The shortcomings with regard to detention for the purpose of extradition, as well as detention of foreign nationals, discussed in the Report «Human Rights in Ukraine – 2004» still remain.

 The above-mentioned failings in legislation and practice have been well-known for a long time, and draft laws have been drawn up which should improve the situation. A new draft Criminal Procedure Code has been prepared for its first reading in parliament. Political will is needed to improve the situation. However political instability, struggles between different political forces are relegating such issues to second place, with the unlawful behaviour of law enforcement officers who flagrantly violate the right to personal liberty goes unpunished. In 2006 21 offences were registered with criminal proceedings being initiated under Article 371 of the Criminal Code (knowingly unlawful detention, bringing somebody in for questioning, arrest)[5]. Prosecutor’s offices launched 5 criminal investigations over unlawful detention.[6]. In response to the UN Committee against Torture, the Government answered that the reason why there had been no response to 1400 complaints made by people who had been detained since 2002, why nobody had yet been prosecuted and why compensation had not been paid the victims could be that the complaints were unfounded.[7]. At the same time, in response to an information request from KHPG, the Ministry of Internal Affairs reported that «in 2006 there were 192 complaints about police behaviour from people held in custody of which 3 were found to be totally justified, 4 partially, 10 people had their statements rejected, and 165 were not found to be justified.»[8].

It should be noted that pilot offices for providing legal aid to people detained began functioning in 2006. This was in accordance with a Strategy Plan for creating a free legal aid system drawn up by the National Commission for the Strengthening of Democracy and the Rule of Law and signed into law by Presidential Decree. The project is supported by civic organizations and financed by the International Renaissance Foundation, the Legal Initiative of the Open Society Institute (Budapest) and the Viktor Pinchuk Fund.

The first pilot offices were opened in Kharkiv and Bila Tserkva and another office is due to be opened in Khmelnytsky in the second half of 2007. The offices will provide free legal aid to all people detained and agreements to this effect have been made with the relevant regional departments of the Ministry of Internal Affairs and civic organizations who will be responsible for the work the offices do.. The proposed model of legal aid should be worked out in the pilot offices and then presented in ready form for use by public bodies. The first months of the pilot offices’ work graphically demonstrated all the problems linked with detention described above. There has also been an increase in the number of court rulings finding detention to have been unlawful, with lawyers working in the pilot offices explaining the grounds for their complaints to judges.

One such example would be the case successfully defended by G.V. Tokareva resulting in a ruling on 13 May 2005. Ms Tokareva was able to demonstrate to the court that her client had been unlawfully detained without a court warrant on suspicion of having committing a crime. The fact that the crime had been committed long before the person was detained was a clear violation of Article 29 of the Constitution[9]. The court found in the claimant’s favour and declared that his detention in a SIZO [pre-trial detention centre] had been unlawful.

Conditions in police custody remain a major problem. MIA mobile groups, together with people from human rights organizations, have examined over 100 temporary holding facilities [ITT] in 14 regions. They found infringements of minimal norms of international standards for police custody in almost all cases.

As of 1 February 2007, there were 536 specialized police premises (487 temporary holding facilities; 36 centres for the reception and distribution of vagrants; and 13 special reception centres for people under administrative arrest). Each day around 6,000 people detained or remanded in custody are held in these places where the conditions do not comply with international standards which are binding for Ukraine. 127 out of a total of 501 ITT need repairs and reconstruction to bring them into compliance, and 57 are presently not functioning in order for this work to be carried out. The MIA was forced to close down 9 ITT altogether since there was no possibility of carrying out the needed repairs and reconstruction work. The MIA drew up a programme for building, reconstruction and repairs to special police premises for 2006 and following years which was approved with MIA Order No. 1001 on 15.11.2005, with the cost estimated at 250 million UAH. The implementation of this programme will make it possible to do repairs to 90 temporary holding facilities, and continue construction of 24 buildings in 16 regions. 30 million UAH was scheduled to be allocated from the State Budget in 2006 and 7 new buildings and 24 existing ITT were supposed to have been completed by the end of the year. However only 30% of this amount was allocated and the money only began arriving in November 2006. This clearly suspended the work on repairs and reconstruction of ITT.

When courts are deciding whether to remand a person in custody or release him or her pending trial, the presumption in favour of remand in custody has considerable impact. If the individual is accused of having committed a crime for which the punishment is over 3 years imprisonment, then only factors linked with an individual’s poor state of health or other exceptional circumstances decide in favour of release pending trial.

There was no change with regard to access of individuals remanded in custody to the courts, since legislation continues to lack any concept of periodic review of the grounds for remand in custody. Limitations on the right of an individual remanded in custody to review of the lawfulness of his/her deprivation of liberty run’s counter to Ukraine’s Constitution and its international commitments. The procedure established by legislation allows for an individual to be held in custody without court review as to whether such a preventive measure is necessary for up to 9 months. During the period between the conclusion of the pre-trial investigation and the commencement of court proceedings, the accused is held in SIZO without any court warrant at all, which is an undoubted infringement of Article 5 of the European Convention on Human Rights and Fundamental Freedoms.

Legislation still fails to guarantee fundamental procedural rights of the accused (suspect) during a court review of the question of remand in custody or release pending trial enabling him or her to defend, his/her right to remand at liberty. Nor is the participation of the remanded person even guaranteed in all court hearings. The general condition of the system of legal aid in Ukraine deprives many of the possibility of receiving qualified legal assistance.

The court hearings held in accordance with Articles 165-2 and 165-3 of the CPC do not ensure «equality of arms» of the prosecuting and detained parties. The rights of the detained person, guaranteed by Article 5 of the European Convention on Human Rights, namely the right to know the arguments of the other side, the right to see all material which the other party’s arguments are based on, the right to adequate time to prepare their position and the right of response to any additional arguments presented during the court proceedings, are not ensured.

Legislation still establishes a time limit for remand in custody only for the pre-trial investigation, not for the stage of court proceedings. Therefore the duration period of the trial directly affects the overall duration of remand in custody.

No progress has been seen in approach to the use of alternatives to remand in custody, such as release on bail. The amount of bail continues to depend on the possible amount of damages sought by the victim, which additionally gravitates against the choice of this preventive measure. Furthermore, legislation does not provide clear norms on resolving the question of bail.

The lack of clear procedure for applying bail makes it especially difficult to choose non-pecuniary forms of bail, and the courts are reluctant to do so. Another contributing factor is the instruction of the Plenary session of the Verkhovna Rada in Resolution № 6 from 26.03.1999 (Item 5): «The property must be of good enough quality, as well as have the legal status to ensure that the enforcement of a court ruling depriving the accused, suspect, defendant or person on bail of the right of ownership to the said property shall not create any difficulties.»

Recommendations

Not one of the recommendations made in last year’s report was implemented, and they therefore all remain current.

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

2. 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. 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. Define in law separate criteria of legality for detention and remand in custody and annul provisions in Item 2.5 of the Joint Order by Ukraine’s Ministry of Internal Affairs and the State Department for the Execution of Sentences No. 300/73 of 23 April 2001, which considers a detainee’s release when the suspicion is not confirmed or when the term of detention has expired as a breach of the law, and other similar instructions;

5. Include in the subject matter of detention hearings circumstances, which address reasons for arrest without warrant, including the following:

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

- 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 Establish a clear presumption in favour of a person’s release and provide that the onus of providing proof of grounds for detention be shifted to the prosecution;

7 Introduce provisions, which would exclude remand in custody or its extension on the basis of purely hypothetical assumptions;

8 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 Introduce provisions which would exclude the practice of detaining a person after his/her release by a judge on the basis of «concealed» accusations;

10 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.;

11 to introduce amendments into Article 165-2 § 4 of the CPC, in order to exclude detention without court control for longer than the period established by Article 29 § 3 of the Ukraine’s Constitution;

12 Introduce provisions which would exclude the practice of detaining a person after his/her release by a judge on the basis of «concealed» accusations.

13 Exclude from legislation the institution of «detention extension» by a judge, or, at least, introduce necessary amendments to the legislation, in order to exclude the practice of returning a person to a police unit after detention has been extended;

14 Introduce amendments to Article 165-2 § 4 of the CPC, in order to exclude detention without court control for longer than the period established by Article 29 § 3 of the Constitution;

15 Introduce amendments to Article 165-2 § 4 of the CPC, in order to exclude detention without court control for longer than the period established by Article 29 § 3 of the Constitution;

16 Establish clear and detailed procedural rules for court review of whether to remand a person in custody or release him or her pending trial, in particular ensuring the following::

– mandatory participation of the person, who has been deprived of liberty, in any detention hearing where the question of his or her remand in custody or release pending trial is being considered

– the accused and his/her lawyer must be provided with a copy of the investigator’s (prosecutor’s) request for his/her remand in custody or extension of custody;

– the remanded person and his/her lawyer must be given the right to study the materials, which justify the request for his/her remand in custody or extension of custody

17 Prepare procedure, which would encourage the use of bail instead of detention;

18 Define more clearly the judge’s scope of powers concerning remand in custody, in particular, to establish clearer criteria for exceptional cases, when a judge can go beyond the margin of his/her general authority;

19 Shorten the maximum term of detention during pre-trial investigation

20 Bring the rules of administrative detention into conformity with the requirements of Article 29 of the Constitution;

21 Introduce amendments to legislation which would exclude the use of administrative detention for the purpose of criminal investigation, for example, by providing mandatory release of a person suspected of having committed an administrative offence pending the hearing into the case

22 Introduce amendments to the Code of Administrative Offences (in particular, to Article 26) and other legislative acts, which would exclude police custody of a person without a court order for over 72 hours.

23 Provide procedure for court hearings concerning the detention of vagrants and people begging, or, at least, enable them to appeal against such detention and provide rules for such procedure;

24 Ensure that detention and subsequent remand in custody of a person pending extradition is enforced exclusively on the basis of a court decision, as well as the right of a person remanded in custody pending extradition to periodic review of the detention.

[1] Prepared by Arkadiy Bushchenko, lawyer and legal expert for KHPG on Criminal Process and the European Court of Human Rights and Yevhen Zakharov, Co-Chair of KHPG and Head of the Board of UHHRU

[2] http://khpg.org/en/1171706224

[3] Letter from the Ministry of Justice №С-8055-38 from 21.05.2007.

[4] MIA letter №10/3-С-1714 from 02.06.2007.

[5] MIA Letter №С-161 from 07.06.2007

[6] CAT/C/UKR/Q/5/Rev.1/Add/1. Written replies by the Government of Ukraine to the list of issues (CAT/C/UKR/Q/5/Rev.1) to be taken up in connection with the consideration of the fifth periodic report of Ukraine (CAT/C/81/Add.1), p. 153.

[7] CAT/C/UKR/Q/5/Rev.1/Add/1. Written replies by the Government of Ukraine to the list of issues (CAT/C/UKR/Q/5/Rev.1) to be taken up in connection with the consideration of the fifth periodic report of Ukraine (CAT/C/81/Add.1), p. 253.

[8] MIA Letter №16/1К-С-169 from 20.06.2007

[9]  The relevant part of this Article states: “No one shall be arrested or held in custody other than pursuant to a substantiated court decision and only on the grounds and in accordance with the procedure established by law. In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours»