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03.07.2006

Human Rights in Ukraine - 2005: III. The Right to Liberty and Security

   

There was little change in 2005 as regards the protection of liberty. One of the few positive changes concerned legislation on compensation for unlawful detention and remand in custody with the adoption on 1 December 2005 of the Law of Ukraine “On introducing amendments to some legislative acts of Ukraine on compensation for damage caused to a citizen by the unlawful actions of bodies of detective inquiry, pre-trial investigation[1], the prosecutor and the court”.  The law supplements existing provisions in this area.

A new point was added to Article 2 of the Law “On introducing amendments to some legislative acts of Ukraine on compensation for damage caused to a citizen by the unlawful actions of bodies of detective inquiry, pre-trial investigation, the prosecutor and the court” stating:

„1-1) the establishment in the court’s conviction or other court ruling (aside from a judgment or

resolution of the court to send the case back for additional investigation, or for a new court consideration) of wrongful charges having been laid, of the unlawful detention and remand in custody, the unlawful carrying out in the course of the criminal investigation or court consideration of a criminal case of a search, confiscation, the unlawful arrest of property, the unlawful removal from work (from ones post), as well as other procedural actions which limit or violate the rights and freedoms of citizens, that investigative operation activities were wrongfully carried out.”

  This point broadens the circle of people who are able to receive compensation. However the law, as before, does not grant the right of compensation to individuals who were unlawfully detained (in the sense of so-called “criminal-procedure” and “administrative” detentions).

  Remand in custody throughout the pre-trial and trial stages of the criminal process remain unjustifiably common, and no steps can be seen towards forming state policy aimed at changing this situation and applying in practice alternative methods of safeguarding the objectives of the legal proceedings.

  In 2005 wide coverage in the mass media of the arrests of well-known political figures (Boris Kolesnikov, Yevhen Kushnaryov) prompted high-ranking state officials to express their views regarding the legality of such arrests. As a result, in the opinions expressed the conclusions presented in last year’s annual report were confirmed regarding the existence of entrenched practice of law enforcement agencies when it comes to detention. The key features of this practice are found in the following:

-  the illusory nature of the limitation set down in Article 29 § 3 of the Constitution which permits detention without a court sanction solely in the event of “an urgent necessity to prevent or stop a crime”;

-  the unjustified extension of the grounds for detention listed in Article 106 of the Criminal Procedure Code (CPC) which in practice makes the single reason for detention being “the needs of the criminal investigation”;

-  the lack of criteria for defining well-founded suspicions and the lack of preliminary court checks as to the well-founded nature of such suspicions;.

Due to this state of affairs law enforcement agencies retain virtually unlimited powers to detain people and can use them as an effective instrument for the criminal investigation. This leads to an unwarrantedly high incidence of detentions.

According to information from the Ministry of Internal Affairs (MIA), investigation units of Ukraine’s law enforcement agencies in 2003 detained 68,960 individuals on suspicion of having committed a crime. In 2004, the figure was 58,462 and in 2005 – 54,300 (in 6 months of 2005 – 28,628 individuals).  In 2003 the prosecutor did not support applications for remand in custody as the preventive measure in relation to 9,762 individuals; in 2004 in relation to 3,397 individuals, while in the first six months of 2005 applications to remand in custody 1,688 individuals were turned down. Criminal cases for knowingly unlawful detention, bringing before a court or arrest (Article 371 of the Criminal Code of Ukraine) were launched against 12 people in 2003, 9 in 2004, while in the first 6 months of 2005 5 such cases were initiated.  However, in 2003 and 2004 in the case of convictions which had already come into effect, not one person was convicted under Article 371, while in the first half of 2005 there were three convictions. In 2005 the MIA received 63,761 letters regarding unlawful actions or inaction by police officers, of which 9,720 were found to be justified. As the result of court investigations, 1,027 faced disciplinary proceedings for unlawful actions or inaction.  However it is not possible to identify the number of cases when disciplinary proceedings were due to unlawful detention.

The Human Rights Ombudsperson during an interview on 15 July 2005 stated that each year around a million individuals are subjected to this kind of unlawful detention or arrest, with the same flagrant violations of human rights and freedoms. In this sense, the “Kolesnikov case” was, in the Human Rights Ombudsperson’s opinion, a classic example.

Moreover, 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.

For example, T. was detained from 3 p.m. on 10 September until 1 a.m. on 11 September 2004 in the Holosiyivsky District Police Station. The fact that this detention occurred was not denied by the authorities.. The Prosecutor’s office of the Holosiyivsky District in Kyiv, for instance, states in its letter from 24 March 2005 that “the claimant was on 10.09.04 at around 18.00 taken to the  Holosiyivsky District Police Station in Kyiv for questioning, and was released at 21.00”.  However the prosecutor’s office refused to view her forced stay in the police station as being a violation of her right to liberty, referring to the fact that no protocol of her detention had been drawn up.

This problem is closely linked to the problem of lack of clarity regarding the beginning of detention.  As before, the beginning of “criminal-procedure” detention is considered to be the moment of making up a protocol of detention, the establishment of which depends entirely on the discretion of the official running the investigation.

Such a state of affairs to a large extent weakens the guarantees of detainees’ rights formally envisaged by legislation, since even in theory these guarantees come into force only after several hours, and sometimes even days have elapsed since the person came under the control of the law enforcement agency.  Until such time as a formal decision is taken regarding detention, the suspect is not considered to be detained, and his or her status during the effective detention in the custody of law enforcement agencies remains undefined until an official (a detective inquiry or investigator) makes up a protocol of detention.

Thus, for example, B. was detained by police officers of the Kominternivsky District Police Station in Kharkiv on 18 July 2005 at 11 o’clock in the morning. However the protocol of detention was only drawn up in the evening of 19 July 2005, following the intervention by officers of the district prosecutor’s office.

Order № 300/73 of the MIA of Ukraine and the State Department of Ukraine for the Execution of Punishments 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 to this day. Point 2.5 of this Order classifies the release of individuals from temporary holding facilities (ITT) due to suspicion that the person had committed a crime having proved unfounded as a violation of legality. This provision is encouraging police officers to use “shadow” detention.

The time limit on detention without a court order, permitted under Article 29 of the Constitution, i.e. 72 hours, just as before remains the usual period for detaining a person in custody without the sanction of a court.  The police use this period to obtain evidence confirming their suspicions that the person detained has committed a crime. Unfortunately, court practice supports the belief held by law enforcement officers that detention may be undertaken without sufficient facts providing reasonable grounds for suspicion, but within 72 hours the police need to find such proof in order to justify their application to remand the person in custody.

Furthermore, the norm of Article 185-2 § 4 of the CPC remains in force, this allowing for detention exceeding the period of time permitted under Article 29 of the Constitution.

The provision is also retained which enables a judge to extend the period of detention for a period up to 10 days, and on application from the detainee up to 15 days.  It cannot be denied that judges 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 regarding the person’s being remanded in custody.

The practice remains common of using administrative arrest for the purposes of the criminal investigation. In such cases a suspect is detained for a period of up to 3 days under Article 263 of Ukraine’s Code of Administrative Offences (CAO), 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”.  It is perfectly clear that the increased use of this ploy by law enforcement bodies is the result of the imposition of court control within the criminal process. However due to an unsystematic approach to legal regulation, amendments were not introduced to legislation which would make it impossible for the law enforcement agencies to evade court control.

There continues to be lack of clarity as to the fundamental basis of detention in connection with the investigation into an administrative offence. A provision remains in the Code of Administrative Offences which allows for detention without a court order.  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.”

It is common to detain and hold in custody vagrants on the basis of Article 11 of the Law “On the police”. For such detention, the law, as before, requires no warrant. 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.  According to MIA figures, throughout 2003 23.6 thousand people were held on suspicion of vagrancy and begging, in 2004 – 32.2 thousand, while in 2005 there were 17.2 thousand such people. On average around 17% of them had been held more than once.

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.

There is still a major problem with conditions in temporary holding facilities or ITT [acronym from the Ukrainian].  According to the MIA, 127 out of a total of 501 ITT need repairs which would cost 25 million UH.  The spending allocated from the State Budget for food for detainees and people remanded in custody amounted to 12 million 769 thousand UH in 2003, 33 million, 782 thousand UH in 2004, and 30 million UH in 2005. This funding is not, however, always spent as intended. Each day around 7,000 people detained are held in ITT. One of the old problems which is yet to be resolved is the high prevalence of tuberculosis in ITT. The MIA inform that pre-trial detention centres (SIZO) of the State Department for the Execution of Punishments have, in violation of Ukrainian legislation, been refusing to accept individuals with tuberculosis from internal affairs agencies who have been remanded in custody. During 2005 there were 2,434 detained or remanded individuals suffering from tuberculosis held in ITT, of whom 650 had an open form of the disease. In addition, 719 individuals were being treated in civil anti-tuberculosis units. Each day there are some 100 – 150 people suffering from tuberculosis being held in ITT, as well as over 100 others with the illness who are treated in municipal anti-tuberculosis institutions under police guard.

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 deprivation of liberty, then only factors linked with an individual’s poor state of health or other exceptional circumstances decide in favour of release pending trial. Sometimes in fact even poor state of health is not deemed good enough reason for such a release.

For example, M., aged 65, who is accused of having committed crimes for personal gain, was remanded in custody by court ruling. During the remand period, her state of health significantly worsened, and in addition, she received injuries which, according to the court medical expert, “placed her life in jeopardy”.  She was in hospital on several occasions in connection with her state of health and injuries. The judge, nonetheless, , in his ruling extending the period of remand to 4 months stated that he saw no circumstances which prevented M being held in remand. M. was finally released by a judgment of the investigation officer on 12 January 2006.

It should be noted that M. had not been released earlier because the investigator did not know about the amendments introduced on 20 January 2005 to Article 165 of the Criminal Procedure Code, which gave the investigator the authority to independently change the preventive measure.

In the event of the termination of a criminal case, the expiry of the time period of remand in custody, if this period is not extended in accordance with legally established procedure, and in other cases, the release from custody of a person during the pre-trial investigation is carried out on the basis of an order from the detective inquiry unit, or investigator in charge of the case, or by a prosecutor, provided that they immediately inform the court which chose this preventive measure. Release from custody in criminal cases, which are already in court, is undertaken only by a decision of the court or judge.

 

  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 of the lawfulness of such a preventive measure for up to 9 months.

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. The general condition of the system of legal aid in Ukraine deprives many of the possibility of receiving qualified legal assistance.

The review carried out in accordance with Articles 165-2 and 165-3 of the CPC does 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, as earlier, establishes a time limit for remand in custody only for the pre-trial investigation, not for the stage of court review. 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-monetary bail. The courts remain reluctant to accept non-monetary forms of bail. Another contributing factor is the instruction of the Plenary session of the Verkhovna Rada in Resolution № 6 from 26.03.1999 (Point 5): «Property should be characterized by sufficient quality and 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

1  to 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  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 court review 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 define in law separate criteria of legality for detention and remand in custody and annul provisions in point 2.5 of the Joint Order by Ukraine’s Ministry of Internal Affairs and the State Department of Ukraine for the Execution of Punishments No. 300/73 of 23 April 2001, which consider 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  to 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  to 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  to introduce provisions, which would exclude remand in custody or its extension on the basis of 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 which 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 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 a detention hearing;

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  to entitle people remanded in custody to seek periodic review of the lawfulness of their detention;

13  to 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 is 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

14  to prepare procedure, which would encourage the use of bail instead of detention;

15  to 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;

16  to shorten the maximum term of detention during pre-trial investigation;

17  to introduce into legislation a maximum term of detention during court hearings;

18  to bring the rules of administrative detention into conformity with the requirements of Article 29 of the Constitution;

19  to introduce amendments into the 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 a trial into the case;

20  to introduce amendments into Ukraine’s Code on Administrative Offences (in particular, into Article 263 of CAO) and other legislative acts, which would exclude police custody of a person without a court order for over 72 hours;

21  to 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;

22  to 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]  There are two separate units in Ukraine – one “diznannya” here called detective inquiry is responsible for determining whether or not a crime has been committed and for identifying suspects, while the pre-trial or criminal investigation unit [slidstvo] is involved later, once charges have been laid, in gathering evidence, etc, for the court appearance. (translator’s note)

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