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Human Rights in Ukraine - 2004: IV. THE RIGHT TO LIBERTY AND SECURITY

   

1. General Comments

Ukraine is a signatory to many international treaties, which set down standards for protecting the right to liberty and to security of person, in particular, the International Covenant on Civil and Political Rights and the European Convention on Human Rights and Fundamental Freedoms of 1950 (hereafter, the European Convention).

Certain steps have been taken in Ukraine to meet the obligations of these international agreements. The most significant influence to standards protecting these rights was the reform of June 2001 (‘the small judicial reform’)

The main features of this reform relating to protection of the right to liberty were as follows.

On 28 June 2001, the provisions of Article 29 of Ukraine’s Constitution and Article 5 of the European Convention came into force in full. Reservations, which had been in force until then and which retained the old procedure for detention and choice of preventative measures, ceased to be valid. To accommodate this, amendments were introduced to the Criminal Procedure Code of Ukraine (CPC) by laws from 21 June 2001 and 12 July 2001.

In particular, a person now had to be brought before a judge as soon as he or she was detained. As a consequence of this, one of the most important guarantees of procedure was introduced into legislation – the personal participation of the detainee in the legal proceedings, since previously the appearance of a detainee before the Prosecutor had been at the unlimited discretion of the latter, unless the detained person had not attained the age of majority

Certain principles of court procedure were created in legislation for issues pertaining to remand in custody or release from custody (Articles 165 -2, 165-3 of the CPC).

The norm which had provided for detaining a person in custody on the basis of the gravity of the crime which the person was accused of was removed from the Criminal Procedure Code.

The law set out limitations on the discretion of the judge in questions relating to remand in custody: the judge was obliged to release a person accused of a crime, the penalty for which was less than 3 years deprivation of liberty.

However, the reform in the area of detention, remand in custody (pre-trial detention) and extension of the period of remand in custody provided less effective than had been anticipated, and did not achieve the aim for which they were implemented, that being to reduce the number of suspects (accused) held in custody.

The report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereafter: ECPT) on the results of a visit in 2002 (§ 12) states that contrary to information given in the previous response of the Ukrainian Government, the Committee had found that institutions of the Ministry of Internal Affairs (MIA) were overcrowded[1].

According to statistics, in 2002 courts of general jurisdiction received 66,176 applications from pre-trial investigation bodies for remand in custody, 91.7% (60,708 applications) of which were satisfied. The investigation bodies asked for extensions to the time period for remand in custody in 16,199 cases, and in 97.8% of them (15,851 cases), the periods were extended. Garrison military courts considered 285 applications to sanction remand in custody, of which they satisfied 71.9% (205 applications).[2]

In 2003, of 62,100 applications to sanction remand in custody, 89.7% (55,600 applications) were satisfied. Of the total number of applications to extend terms for remand in custody (16,200) 97.3% (15,800) were satisfied.[3]

It is interesting to note that in 2002, 61,013 people were sentenced to deprivation of liberty.[4] Thus, the number of people who were deprived of their liberty without guilt having yet been established exceeded the number of those actually convicted and sentenced to periods of deprivation.

It should be noted that in 2003, out of 55,600 sanctions for remand in custody, around 5.6% (3,100) were appealed. Of the 2,900 of these considered, over 20% (608 appeals) were satisfied. [5]

As this information shows, courts, when deciding whether a person should be remanded in custody or released pending trial, are in the vast majority of cases inclined to decide in favour of custody.

In this connection, it is important to analyze in detail the amendments to legislation and corresponding changes in administrative and court practice. This will enable us to assess the extent to which the amendments have influenced practice and to what degree this practice is in keeping with the standards established by international institutions (for example, the UN Commission on Human Rights, the UN Committee against Torture, the European Committee for the Prevention of Torture) both in their general comments and in their recommendations specifically addressed at the Government of Ukraine. The following analysis will deal mainly with the right to liberty in the context of criminal legal proceedings.

2. Legislative regulation of detention and practice

2.1. Detention without a warrant in connection with a criminal process

The institution of detention without a court warrant on suspicion of having committed an offence («criminal-procedural detention») remains insufficiently developed.

The general legal basis for such detention is set out in Article 29 of the Constitution of Ukraine[6] and Article 5 of the European Convention.

Article 29 of the Constitution provides for a compulsory court warrant for any deprivation of liberty, foreseeing detention without warrant as an exception from a general rule. Part 3 of Article 29 of the Constitution provides the necessary condition, under which detention without warrant can be applied: « In the event of an urgent necessity to prevent or stop a crime».

The same provision establishes a time limit for police detention without a court warrant: «The detained person shall be released immediately, if he or she has not been provided, within seventy-two hours from the moment of detention, with a substantiated court decision in regard to the holding in custody».

While Article 29 of the Constitution does not directly stipulate the requirement to ensure the appearance of detainees in court, Paragraph 3 of Article 5 of the European Convention on Human Rights states that a detainee must be immediately brought before «the competent legal authority».

Paragraph 1(с) of Article 5 of the European Convention also stipulates one of the key requirements for the lawfulness of detention without a court order, namely reasonable grounds for suspicion.

Although Article 29 of the Constitution establishes that a court warrant is obligatory for any deprivation of liberty, it should be acknowledged that legislation and practice have shown scant respect for this constitutional demand. Despite the clear provisions of Article 29 of the Constitution, which outline the authority of law enforcement officers to detain without court warrant as an exception to the rule, in practice, the situation is rather the opposite and such detentions remain the rule, while detention on the basis of a court order – the exception.

The reason for this is that the legislators have failed to incorporate into current laws the principle of protecting the right to freedom, imbedded in Article 29 of the Constitution and in Article 5 of the European Convention. As a result of this, the long-entrenched practice of law enforcement officers, who consider that considerable powers to enforce detention are an integral part of their activity, remains intact.

In legislation the institution of detention without a court warrant is formed by several laws.

The law «On the Police», in Article 11 stipulates:

The police, in order to fulfil the duties which have been vested in them, are given the right:

5) to detain and hold in specially designated premises:

people suspected of having committed a crime, people accused of a crime who are attempting to abscond from the (detective) inquiry unit, the criminal (pre-trial) investigation department[7] or the court, people convicted who are attempting to avoid punishment – for periods and according to procedure established by the law ….

The provision in itself contains no rules as such and in its substance refers to ‘procedure established by the law». This flaw in the law «On the Police» affects administrative practice, as the provision which an officer of the police is expected to adhere to is, even after considerable perusal, difficult to define.

In the area of a criminal investigation, the most detailed – effectively the only – legal provision formulating detention without court order is Article 106 of the Ukrainian Criminal Procedure Code (CPC). Parts 1 and 2 of this article contain a comprehensive list of situations in which a state representative is given authority to detain a suspect.

A body of inquiry unit shall be entitled to detain a person suspected of having committed a crime for which deprivation of liberty can be imposed as punishment subject to the existence of one of the following grounds:

1) if the person was discovered committing the crime or immediately after committing one;

2) if eyewitnesses, including the victims of the crime, directly identify the given person as having committed the crime;

3) if there are clear traces of the crime on the suspect or on the clothing which he or she is wearing or which is kept at his home.

If there are other data which constitute grounds for suspecting the person of committing an offence, he may be detained only if he attempts to escape, or if he has no permanent place of residence, or if the identity of the suspect has not been established.

In a strict interpretation of these provisions, the situations stipulated in part 1 of section 106 can be considered as situations of «urgent necessity to prevent a crime or stop it».

However, these provisions are vaguely formulated and allow a myriad of arbitrary interpretations. For example, the criterion «the person was discovered committing the crime» fails to give a clear answer to the question: who should discover a person committing the crime?. Hence, a police officer or investigator can rely on this provision, when some other person discovered a suspect at the scene of the crime. Similar comments could be given as to the formulation of other grounds for detention, specified in part 1 of Article 106 of CPC.

In detention reports, the points of this provision are often simply quoted. In fact, these restrictions in such formulation and with the interpretation which they have taken on in practice, have lost any restraining power, and detentions are carried out on the basis of any information held by a detective inquiry unit or criminal investigation department, regardless of whether or not the person taking the decision as to detention is in the situation of an «urgent necessity to prevent a crime or stop it».

Thus, the restrictions on detention without a court order, as set out in part 3 of Article 29 of the Constitution, have effectively been ignored by criminal procedure legislation and the practice of detaining without an order has remained unchanged.

Moreover, this provision has, to a large extent, lost any meaning as a norm regulating the lawfulness of the actual detention, and has shifted its application to the extension of custodial detention, since the legislation lacks a clearly defined moment, from which the detention of a person is to be counted.

In accordance with established practice, «criminal-procedural detention» begins at the moment of compiling a detention protocol. However the definition of this moment is entirely at the discretion of the official leading the investigation. Therefore, in practice, the term of detention is not counted from the moment when the person was in fact deprived of his or her liberty, but from the moment when the official who was responsible for the detention completed all necessary formalities.

There is a provision in legislation which makes it clear that the initial moment of detention is in fact the moment of actual apprehension. This is section 44 of PCP, which reads: «a defending lawyer shall be allowed to participate in the case… from the moment when the detention protocol is given to the suspect… but no later than twenty four hours from the moment of detention». Thus, the law does not link the beginning of detention with the moment when the protocol for such detention is compiled.

However, the police pay little attention to this provision and law enforcement bodies retain a practice, whereby between the actual moment of detention of a suspect and the preparation of the protocol for detention a certain amount of time elapses, ranging from several hours to – on occasion – several days. This has even had an impact on the organisational work of regional departments of the police which have rooms for ‘people brought in’, which are intended to hold in custody people brought in to the regional department, but «not yet detained».

This was noted by the European Committee for the Prevention of Torture in Article 15 of their Report on their visit to Ukraine in 1998: «During the first 24 hours, the bodies of the inquiry (diznanie) i.e. officers of the criminal Militia, must undertake urgent operational and investigatory duties concerning the case, carry out an initial questioning of the apprehended person and establish a protocol of detention …»[8]

This situation is of great importance in assessing how well guarantees of the rights of detainees are implemented, guarantees which theoretically are provided by the legislation, because even formally these guarantees come into force only after several hours, and sometimes several days after a person has come under the control of a law enforcement agency.

Until a formal decision concerning detention has been taken, a suspect is not considered detained. His/her status while being effectively held in custody by a law enforcement body remains unclear until an official (a detective or investigator) has compiled a protocol for detention. In accordance with prevailing doctrine and practice, it is precisely at this point that agents of the State are obliged to inform the detainee of his/her rights, notify relatives of the detention, provide access to a lawyer, etc. The unclear status of a suspect between the moment of deprivation of liberty and moment when a protocol of detention is compiled, prevent him or her from exercising those rights guaranteed by Article 29 of Ukraine’s Constitution and Articles 5 and 6 of the European Convention on Human Rights.

A number of examples from the practice of the Fund for the Professional Support to Victims of Torture and Inhuman Treatment confirm that detention in police custody without the preparation of a protocol of detention is practiced:

Ivan N. (from Khmelnitsky) was detained by law enforcement officers on 20 May 2004 near his home and was held in a district police station without a formal record of detention until May 21, when a protocol of detention on suspicion of having committed an administrative offence was compiled.

Yevgeny B. (from Kharkiv) was detained by officers of a crime detection unit in the morning of 11 April 2002. Only in the evening, in the district police station was a protocol of detention on suspicion of committing an administrative offence prepared. During the whole day, B. was held by officers of the investigative operations unit.

Viktor K. (from Krivy Rig) was detained at 6 in the morning of 25 November, 2003 by officers of the department for fighting organised crime. He was held in detention on department premises. Only in the evening of 27 November was a protocol of his detention on suspicion of having committed a crime compiled.

Mikhailo K (from Chernihiv) was detained around 6 p.m. on 14 August 2001 and taken to one of the regional police stations. He was released late that evening. No protocol of detention was prepared.

Oleksy Z (from Kalush, Ivano-Frankivsk region) was detained at around 4 p.m. on 17 May 2003 and taken to a regional police station. It was not until 10 in the evening that a protocol of administrative detention was issued.

Courts also often encounter the situation where, during a court hearing, it becomes clear that the individual was detained considerably earlier than is recorded on the protocol of detention.

One reason for the use of such ‘shadow’ detention is that there are virtually no independent criteria in legislation for defining legal detention. In an order of the Ministry of Internal Affairs, we read:

Within 10 days from the day when a breach of the law is established, to carry out an internal investigation into each instance:

where individuals were released from temporary cells because suspicions were not confirmed or if the period of detention has expired;

[in the case] of an acquittal or suspension of a criminal investigation concerning individuals, who were detained in custody.[9]

Thus, this order identifies as a breach of the law any detention, which does not later become remand in custody. This can lead to two equally fatal consequences as far as law enforcement activity is concerned:

On the one hand a police officer may unjustifiably refrain from detaining a suspect if there seems the smallest chance that the suspicion which initially warranted the detention could prove later to be unfounded;

On the other hand – with this being more likely – a police officer will resort to any means, including those which are illegal, to ensure that the detention does lead to remand in custody.

It is hardly surprising that, faced with such a choice, police officers resort to «informal» detention, in order to avoid being held liable for a detention which later proved to be unwarranted.

If we consider the regulatory meaning of Article 106 of the Criminal Procedure Code, which it has taken on in practice, it transpires that legislation contains virtually no norm which sets out conditions for lawful detention without a court order.

One can thus draw the conclusion that Ukrainian legislation lacks a provision which, on the one hand, clearly defines the conditions for lawful «actual» detention, while on the other hand, regulates the legal relations which arise during the period between «actual» detention and the formal presentation of a protocol of detention.

In 2004 the question was raised several times as to whether to introduce for the second reading the Draft of the new Criminal Procedure Code of Ukraine.

The regulations proposed in the Draft Code do not, however, resolve the problems present in current legislation.

For example, Part 2 of Article 118 of the Draft broadens the grounds for detention without a court warrant, using, odd as this may seem, the formulation from Article 29 of the Constitution. In point (1) of this Article, the Draft allows for detention without court warrant in cases of «urgent necessity to prevent a crime or stop it». Although this repeats the provision of the Constitution, the authors of the Draft have, however, entirely distorted the meaning of this constitutional restriction. Whereas in the Constitution this is a norm limiting the possibility of detention without court order, the authors of the Draft have presented it as yet another («supplementary», «together with other cases») instance where the State is permitted to deprive a person of their liberty without prior consent of the court. According to the logic of the Constitution, any provision of the law which allows for detention without a court order should be first checked from the point of view of whether it is constitutional, that is, whether the said law does not give the State greater powers than allowed for by Article 29 of the Constitution.

Similar comments could be made concerning Part 2 (5) of Article 118 of the Draft. Here the possibility is allowed for of detention without court order «in order to bring a person to a crime detection unit, a pre-trial investigation unit or to the court on the basis of well-founded suspicion that the person has committed a crime or actions which can be dangerous to the public». This provision of the Draft is somewhat reminiscent of the formulation of Paragraph 1(с) of Article 5 of the European Convention on Human Rights. However, Article 5 § 1(с) of the European Convention, in the first place, stipulates that the person be brought before a «competent legal authority», while Part 2 (5) of Article 118 of the Draft demands that a person be brought not to a «judicial body», but only to some kind of «place for carrying out» detective inquiry work, pre-trial investigation or the court. These are fundamentally different demands. Moreover, any detention on suspicion of having committed a crime, not only detention in accordance with Part 2 (5) of Article 118 of the Draft can be carried out only for the purpose of bringing a person before the court.

2.2. Bringing the person detained before a judge

The Criminal Procedure Code (CPC) provides for the mandatory bringing before a judge of a person who could be detained for more than 72 hours. In accordance with Article 106 of CPC:

Within 72 hours of detention, the detective inquiry unit shall:

release the person detained if the suspicion that the person committed a crime is not confirmed, if the period established by law for detention has expired, or if the detention was carried out with infringements to parts 1 and 2 of this article:

release the person detained and choose another preventive measure in regard to this person, but not involving detention in custody;

bring the person detained before a judge with a request to grant an order to remand the individual in custody.

Given that under Article 29 of the Constitution, a detained person must be released if there is no court order within 72 hours, it is clear that the person must be brought before a court leaving reasonable time for the court hearing and deliberation within this maximum period. In this respect, the formulation of section 106 of CPC could lead to a violation of this constitutional requirement, because this section considers the moment of bringing somebody before a judge as being the end of this period and not the moment of providing the detainee with a motivated court decision.

In addition, due to the fact, that the period of detention is calculated from the moment of compiling a protocol of detention (see above), a suspect can, in fact, be held in police detention without a court order for a period which exceeds that allowed for in the Constitution by several hours or even days.

For example, Victor K. (from Kryvy Rig) was detained at 6 a.m. on the morning of 25 November 2003 and brought before a judge only on 30 November 2003, since the protocol of detention had been compiled only on 27 November.

Law enforcement officers consider 72 hours to be the period during which they have entirely unlimited authority to hold a person in custody. Judges, before whom a detained person is brought, do not demand that the law enforcement officers provide proof that the person could not have been brought before them within a shorter period. The Kharkiv Human Rights Protection Group does not know of a single occasion when a detainee was brought to a judge on the day of or on the day after his or her detention.

In order to extend the period of detention, the Police combine a case of detention on suspicion of being guilty of an administrative offence (see section 2.5.) with detention on suspicion of having committed a crime. In such cases, the suspect is held for up to 3 days in accordance with Article 264 of the Code of Administrative Offences, and when this period has expired, in accordance with Article 115 of the CPC. As illustration of this, we can cite the following examples from our practice:

Ivan N. (from Khmelnitsky) was detained by police officers on 20 May 2004, and brought before the judge only on 26 May 2004. From the moment of detention to 21 May, he was held in detention without any protocol. From 21 to 23 May – on the basis of a protocol referring to an administrative offence. Detention on suspicion of having committed a crime was formalized only on 23 May 2004.

Oleksy Z. (from Kalush, Ivano-Frankivsk Region) was held in detention without being brought before a judge for six and a half days. On 17 May 2003, he was detained under procedure for administrative offences and taken to a district police unit. Then on May 20, a protocol of detention on suspicion of committing a crime was compiled. In total, he was in the custody of the police without court control up to the morning of May 24.

This practice is only possible due to the insufficient incorporation into special legislation of the demands of Article 29 of the Constitution, which provides for deprivation of liberty on the basis of a court warrant, or – in exceptional cases – with a court order received within 72 hours from the moment of detention, regardless of legal grounds used to justify this deprivation of liberty. Administrative practice concerning detention should be based on the requirements of Article 5 § 1(c) and 3 of the European Convention on Human Rights which do not differentiate between suspicion of having committed an administrative offence and suspicion of having committed a crime.

Often in order to extend detention in custody, the police use a method, whereby law enforcement officers if a court has turned down their request for a detention order and has released a detainee, in the court building itself or on the way out, detain the suspect on a suspicion «held in reserve».

Such a method is possible only due to the excessively broad interpretation, which the terms in Article 106 of CPC have taken on in the practice of law enforcement officers and judicial practice (see section 2.1. Detention without a warrant in connection with a criminal process)

The provisions of Part 4 of Article 165-2 of CPC give grounds for serious concern:

If the application is for a warrant to take into custody a person at liberty, the judge is authorized to sanction the detention of the suspect or accused and have him or her brought before the court. Detention in this case cannot last longer than seventy two hours, or when a person is located outside the court’s jurisdiction, – no longer than forty eight hours from the moment of bringing the detainee to this place.

Since no limitations are imposed on the period for bringing the person to the necessary «populated area», the time spent in police detention without court control could theoretically last any amount of time.

On 14 October 2003 in Simferopol, Mr N. was detained on the basis of a court order, issued by the Pechersky regional court in Kyiv in accordance with Part 4 of Article 165-2 of CPC. He was detained in the building of the Central District Court of Simferopol where he had gone to take part in a detention hearing on the application of the Prosecutor’s office of the Crimea. After his detention, Mr N. was brought before a judge of the Pechersky regional court in Kyiv only on 7 November 2003, that is, 24 days from the moment of detention. Before his appearance before the judge, he was held in a temporary detention facility in Simferopol.

2.3. Extension by a court of detention in police custody

Part 8 of Article 165-2 of the CPC gives a judge the authority to postpone detention hearings for up to 10 days, and – at the request of the person detained – up to 15 days, if the judge considers that «to decide on the choice of preventive measures, it is necessary to additionally study information about the detainee or clear up other circumstances which may have significance in taking a decision on this question»

A number of researchers and practicing lawyers have suggested that «this legal provision presents … a guarantee from groundless detention»[10]. However, this idea can scarcely be justified theoretically, since such an approach makes it possible for a law enforcement agency to detain a person without sufficient grounds. A stronger guarantee from groundless detention would be a clearly established obligation of the court to release a detainee, if the prosecution have failed to present sufficient reasons for his/her continued detention.

Furthermore, in practice, having detention extended can increase the risk for a detainee, because in such a case he/she remains in police detention and is not transferred to a pre-trial detention centre. By law, a court decision to extend police detention is not a basis for placing a detainee in a pre-trial detention centre, because according to section 3 of the Law on Pre-trial Detention «the basis for pre-trial detention is a motivated court decision to remand a person in custody, made in accordance with both the Criminal Code and the Code of Criminal Procedure of Ukraine».

Quite often the prosecution asks to extend the period of temporary detention specifically to avoid a detainee being transferred to a pre-trial detention centre, because this could complicate «the success of the investigation» and «effective work with the suspect».

As a rule, a detention hearing resulting in a decision to extend the detention period is conducted in a very superficial manner.

Viktor K., who was detained in Kryvy Rig, described his detention hearing as follows:

«I was brought to court, where it was to be decided, whether I would be remanded in custody or released. The judge asked me only one question, ‘What can you say in your defence?’ I said that I was innocent, that I had an alibi, that I had not been allowed to see my lawyer. The judge ordered that I be taken out and announced, ‘Give him seven more days.’ She did not respond to my request to hold an interrogation».

According to the conclusions of research, «the absolute majority of case files, which contain court decisions on choosing remand in custody as preventive measure after the expiry of a 10-day period of detention, do not contain any new documents obtained during the extended period, nor are there any references to them in the court decisions». [11]

According to an analytical summary of court practice undertaken by the Zaporizhye Regional Appeal Court: «One can identify a shortcoming in the work of courts in the fact that courts, while making decisions on extending detention, fail to record in their decisions, which particular circumstances need to be clarified and which specific actions are to be made in connection with an additional clarification of these circumstances, and sometimes they use the right to extend detention not in order to determine whether it is expedient to keep the person in custody, but rather to ‘help’ investigators to gather necessary evidence in the case, this being inadmissible».[12]

The conclusions of this study confirm yet again, that extension of detention is used not to ensure a more considered judge’s decision as to whether to release a person pending trial or to remand them in custody, but rather to prolong the time he or she is held in detention by law enforcement officers.

Such a state of affairs leads to additional risk of the use of torture and ill-treatment not only because, during the extended period of detention, a suspect (accused) could again be subjected to torture, but also because prolonged detention precludes timely reporting about ill-treatment and complicates subsequent investigation into the relevant complaints.

Unfortunately, the draft of the new Criminal Procedure Code of Ukraine retains a similar provision in part 3 of Article 148.

2.4. Arrest on suspicion of having committed an administrative offence

There is still much uncertainty as to the basic principles of detention in connection with investigation into administrative offences.

According to Part 3 of Article 29 of the Constitution, detention without a court warrant is permissible only in connection with a criminal process. This is clearly deduced from the following provision:

«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».

Ukraine’s legislation makes a clear distinction between the concepts «crime» and «administrative offence». Legal doctrine also clearly differentiates between two types of offence: a «crime» which always means a «criminal offence» and an infringement of the law in the narrow sense of the word, that is, an «administrative offence».

Thus, Part 3 Article 29 of the Constitution does not permit detention without a court order in cases involving «offences», as opposed to «crimes», even when there is an «urgent necessity» to prevent or stop them. The fact that such is not in contravention of Article 5 of the European Convention on Human Rights is irrelevant in this case. Firstly, according to Article 8 of the Constitution, constitutional provisions hold ultimate legal authority on the territory of Ukraine. Secondly, Article 5 of the European Convention considers admissible only detention, which is conducted «in accordance with a procedure prescribed by [national] law».

However, Ukraine’s Code on Administrative Offences (CAO), as before, contains provisions, which allow detention without a court warrant. This authority is based on the following provisions of the CAO: Article 259 «Bringing in an offender»; Article 266 «Procedural measures in cases of administrative offences»; Article 262 «Agencies (officials) authorized to conduct administrative detention»; Article 263 «Periods of administrative detention».

Special attention should be paid to Article 259, which determines the procedure for so called «bringing in» a person suspected of having committed an administrative offence. It provides virtually unlimited authority to detain and bring a suspect to a unit of a law enforcement agency. Although the period of detention is limited to one hour, the period for bringing in the person is not limited by law and is regulated only by a general instruction: «An offender should be brought in within the shortest possible period».

Moreover, if we look at the legislation system in Ukraine on the whole, such «bringing in» is not considered to be a deprivation of liberty at all. For example, unlike «detention» in the narrow sense of the word, there is no criminal liability for unlawful «bringing in». Nor can unlawful «bringing in» be grounds for redress according to the Law of Ukraine «On the procedure for compensation of damage caused to the citizen by unlawful actions of bodies of inquiry, pre-trial investigation, prosecutors and courts».[13]

As to administrative detention in the narrow sense, here too there is a certain degree of uncertainty in legislative regulation.

Point 5 of Article 11 of the Law «On the Police» allows police officers the right to detain «individuals who have committed administrative offences, for a period of up to three hours, in order to prepare a protocol or to consider the essence of the case … if these issues cannot be resolved on the spot, …». Thus, according to this provision, an officer of the police has authority to detain a person suspected of committing any kind of administrative offence.

However, Article 262 of CAO, which addresses this issue, limits the authority of the police to detention in cases involving a certain range of offences, these being listed in full in the said Article.

The clash between the aforementioned provisions of the Law «On the Police» and Ukraine’s Code of Administrative Offences does not make it possible to clarify the scope of police authority to detain those suspected of an administrative offence. This lack of clarity is exacerbated by the lack of correspondence of certain definitions of offences in Article 282 of CAO to those of the material articles of the same code.

2.5. Prolonged administrative detention

Although the rules stipulate that administrative detention should not last more than 3 hours, law enforcement officers retain considerable authority to extend such detention for a longer period.

The Law of Ukraine «On the Police» in point 5 of Article 11 foresees, that «in cases where this is necessary in order to identify a person or establish the circumstances of an offence» the police have the right to detain a person and hold him or her in custody «up to three days, with notification of this in writing to the prosecutor within 24 hours from the moment of detention».

Article 263 of CAO gives the police even more authority. The article states that «people who have infringed regulations concerning the use of narcotics and psychotropic substances» can be detained «for a period of up to 10 days with the sanction of the Prosecutor, if the offender does not have documents which identify him or her».

This provision of CAO manifestly violates Article 29 of the Constitution, which requires that the lawfulness of a person’s detention be examined by court within 72 hours.

Viktor G. (from Kirovohrad Region) was detained by police officers on 10 July 2003 on suspicion of petty hooliganism (Article 173 of CAO). He was brought before the court to review the case on its merits only on 14 July 2003. From the decision of the judge, it is clear that the detention had only been formally registered on 11 July, that is, the day after the actual detention.

The absence of clear conditions for lawful detention, the greater restrictions, as compared with criminal law, on the rights of a person detained for an administrative offence lead to administrative detention being widely used for the purpose of criminal prosecution. The Committee for the Prevention of Torture in its report after its 2002 visit (§16) noted that law enforcement agencies use provisions of CAO and the Law «On the Police» to have the opportunity to interrogate a detained person without the safeguards and time limits, prescribed by the Criminal Procedure Code.

It is quite clear that the widespread use of this ploy by law enforcement officers is the result of the introduction of court control in the criminal process. However, due to an unsystematic approach to legal regulation, amendments were not made to legislation that would make it impossible for law enforcement officers to elude court control.

2.6. Liability for unlawful detention

Law enforcement officers who detain a person in breach of section 106 of CPC face virtually no risk of adverse consequences.

According to point 11 of Resolution № 4 of the Plenum of the Supreme Court from 25 April 2003, «recognition that the detention is unlawful shall not be grounds for turning down an application to remand a person in custody»

In view of the extremely unclear wording in Article 106 of CPC, the prospects for charging somebody who carried out an illegal detention with criminal liability appear very bleak. Neither agents of the State individually, nor the State as a whole are under threat of civil liability either, since the opportunities for victims to seek redress for unlawful detention are very limited.

The Kharkiv Human Rights Protection Group is unaware of any cases of conviction under Article 371 of the Criminal Code, which foresees liability for clearly unlawful arrest, detention, or compulsory appearance before a court.

2.7. Detention of vagrants and homeless people

The detention and holding in custody of vagrants is governed by Article 11 of the Law «On the Police». For such detention, the law, as before, requires no warrant: it is sufficient if a law enforcement agency informs a prosecutor. This allows law enforcement agencies to widely use such detention without sufficient grounds or even use it dishonestly. On 3 September businessman K. was apprehended in Kryvy Rig by officers of the Department for Fighting Organized Crime (UBOZ) in connection with the terror attack in Beslan (Russian Federation). After Mr. K had spent a few hours on the premises of UBOZ, at the decision of the head of the district police station in Kryvy Rig, which was sanctioned by the prosecutor’s office, he was placed in a centre for the reception and allocation of vagrants for a period of 30 days. The police officers knew that he had a family and permanent residence. Nonetheless, he spent 20 days in the detention centre and was released only on 22 September after his lawyer intervened and submitted a complaint to court.

2.7. Detention for the purpose of extradition

In accordance with Part 3 of Article 25 of the Constitution the extradition of Ukrainian nationals to other countries is prohibited. Extradition of foreign nationals and stateless people is allowed by Ukrainian legislation only if such extradition is provided for by the international treaties ratified by Ukraine (section 10 § 2 of the Criminal Code of Ukraine).

In Ukraine, detention for the purpose of extradition is regulated by the 1957 European Convention on Extradition and 1975 Optional Protocol to it, the 1959 European Convention on Mutual Assistance in Criminal Cases and 1978 Optional Protocol to it, the 1983 Convention on the Transfer of Sentenced Persons, the 1993 Convention on Legal Aid and Legal Relations in Civil, Family and Criminal Cases (the Minsk Convention), as well as by bilateral agreements.

The above treaties provide for detention of the individual whose extradition is sought after obtaining an application for extradition, or in certain cases, temporary detention until obtaining such an application.

According to Ukrainian legislation, the General Prosecutor’s Office has authority to make decisions concerning extradition. Traditionally the General Prosecutor’s Office has dealt with all issues connected with the extradition process, in particular detention and remand in custody for the purpose of extradition. Legislation lacks any procedure concerning either the principal decision or those supplementary to it. A person whose extradition is sought has no legal possibility to participate in the consideration of these decisions and present his/her objections.

The clear lack of compliance of such procedure for deprivation of liberty for the purpose of extradition to Article 29 of the Constitution of Ukraine, and the absence of any procedure for court consideration of this issue have led to inconsistent practice in this area. This in turn elicited a reaction from the Supreme Court of Ukraine, which at its Plenary Session of 8 October 2004 adopted Resolution No. 16 «On some issues as to the application of legislation, which regulates procedure and period of detention (arrest) in the course of considering issues of extradition». This resolution partly fills the gap in regulating the issues involved. Nevertheless, this resolution is not sufficient to harmonize the practice with the requirements of the Constitution and European Convention on Human Rights.

For example, the Plenum noted that «taking into account that in Ukraine a person can be held in custody for over three days only with a motivated court decision, and taking into consideration that according to Part 2 of Article 29 of the Constitution, such a decision can be made only by an authorized Ukrainian court, courts must accept and consider on their merits the applications from prosecutors or from authorities sanctioned by prosecutors, which are executing applications from other countries for extradition, provide the warrant for the detention of the person and his or her escorting to a competent authority of a foreign state» (point 3).[14]

However, this resolution, although it obliges courts to accept for considerationapplications from competent authorities of the executive, cannot oblige the executive to submit such applications to courts. That is, if a prosecutor’s office does not submit to court an application to detain a person for extradition, then this person could be held in custody without a court decision.

This could lead to a situation whereby competent authorities of the executive would not appeal to court procedure if it is likely that they would get an adverse result.

This situation is mitigated by the fact that, according to point 6 of the Plenum’s resolution «courts must admit and consider the merits of complaints submitted by persons detained following a request for extradition from other state alleging that the detention was unlawful, as well as complaints by the defenders and legal representatives».

According to the interpretation by the Plenum, such complaints are considered under procedure provided by Parts 7 and 8 of Article 106 of CPC, which, in turn, refer to Article 165-2 of CPC.

Thus, to decide on issues concerning the lawfulness of detention, the Supreme Court adapted a procedure provided by Articles 106 and 165-2 of CPC. However such an approach raises several questions:

First, according to Article 106 of CPC, in the interpretation of the Plenary Session of Ukraine’s Supreme Court in its Resolution No. 4 of 25 April 2003 «On the practice of use by the courts of remand in custody, and the extension of periods of remand at the stages of detective inquiry and pre-trial investigation», recognition that detention is unlawful does not lead to release from custody. Moreover, in accordance with procedure, foreseen in Article 106 of the CPC, only the lawfulness of the initial detention by a law enforcement agency, but not the extended detention, is the subject for consideration.

For example, if a person detained for extradition is remanded in custody on the basis of a court decision after consideration of the prosecutor’s request, then the court which is considering a complaint by the detainee will in any case consider the period of detention before the initial court decision, if there was such a period.

Secondly, the Plenum ignored the issue of the use of other means for securing an extradition procedure beside custodial detention, even though there could be circumstances, in which it would be possible to secure the presence of a person during extradition process without detaining him or her. It must be taken into account that the system, which provides for mandatory detention or because of its nature leads in practice to such an outcome, is in contravention of the obligations of Ukraine under Article 5 of the European Convention on Human Rights.

In addition, the possibility to appeal in court the lawfulness of the whole period of detention for extradition would create additional safeguards against abuse, in particular, against unreasonable delay in extradition procedure. According to European Court case-law «any deprivation of liberty under Article 5 § 1(f) will be justified only for as long as [extradition] proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 § 1(f)»[15]

On 23 August 2004, Mr. K., a citizen of the Russian Federation, was detained in Kyiv without any legal grounds. While in a district police unit, it was discovered that law enforcement agencies of the Republic of Kazakhstan had issued a warrant for his arrest. Mr. K. was detained at the district station until September 13. On that day, he was brought before a judge who decided to detain him for 30 days. After the term imposed by court expired, he was not released, but continued to be held in pre-trial detention centres, first in Kyiv, then in Kharkiv.

Mr. S. was detained on 29 December 2004, on the basis of a decision to detain him made by law enforcement agencies in the Republic of Belarus. Mr. S. was held in custody at the Pechersky district police station in Kyiv without court control until 11 January 2005. On January 11, the Pechersky District Court in Kyiv decided to detain Mr. C. in order to secure his possible transfer to a competent authority, provided that the application for his extradition to the Republic of Belarus was upheld. After the term imposed by court expired, Mr. S. submitted a complaint about unlawful detention, but the court, while recognizing the detention unlawful, refused to release him.

2.9. Detention of aliens

Detention at a Border Guard post is regulated by Ukraine’s Law on the State Border Guard Service of Ukraine[16] and the Instruction «On the procedure for detention of persons detained by units of the State Border Guard Service of Ukraine under the administrative procedure for violation of legislation on the State border of Ukraine and on suspicion of having committed a crime (approved by Order No. 494 of 30 June 2004 by the Administration of the State Border Guard Service)» [17]

The above Law and Instruction refer to the Constitution of Ukraine and the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human rights, the UN Convention on Refugees as the legal basis for the activity of officials at detention facilities of the Border Guard.

However, a few points in the Law and in the by-law Instruction give grounds for serious concern.

Despite the adoption of the Border Guard Law, the situation with detention periods remains unchanged, since the Law in itself contains no restrictions, but rather refers to other laws. A number of these laws, including the relevant sections of Ukraine’s Code of Administrative Offences (CAO) have been analyzed above (see section 2.5). Given that these laws have not been amended, units of the Border Guard, as before, retain the right to detain people for up to 10 days without a court warrant.

Individuals, who have violated border regulations, can be detained for up to 3 days, provided that the prosecutor is notified within 24 hours. In addition, detention can be extended, if sanctioned by the prosecutor, for up to 10 days.

In addition to power provided by section 263 of CAO, Article 20 of the Law on the Border Guard (point 14) makes it possible to detain those who have illegally crossed the border and whose transfer to the border guards of a neighbouring state is planned, for such time as is «necessary for their transfer».

It is important to note that in all the above-mentioned cases, no court decision is necessary; although the wording of these provisions allow detention for over 72 hours, it is sufficient for such detention to obtain a sanction from the prosecutor. This clearly creates the possibility of violating Article 29 of the Constitution and weakens the guarantees of the person detained.

The 6-month limit on detention for the purpose of deportation prescribed by the Law on the Legal Status of Aliens and Stateless Persons is a positive step[18]; it is a response to comments by the European Committee for the Prevention of Torture (ECPT) in their Report on their visit in 2002.

The Law on the State Border Guard Service of Ukraine does not allow for the possibility for appealing detention in court. Nor is such a possibility provided in the Instruction of 2004. This violates Paragraph 5 of Article 29 of the Constitution of Ukraine and Paragraph 4 of Article 4 of the European Convention on Human Rights both of which guarantee the right of judicial review with regard to the lawfulness of any individual’s detention.

The Instruction of 2004 does not include the decision of the court among the grounds for release, (point 6.1). Hence, it is possible that a court decision to release somebody might only be effected if one of the executive bodies listed in the Instruction «authorized» the court decision. This situation cannot enhance the authority of court decisions and protection of detainees’ rights.

We should note, however, a few positive amendments to the legislation, probably introduced in response to criticism from the ECPT.

Unlike the Instruction of 1996, the Law on the State Border Guard Service and the Instruction of 2004 provide for informing relatives about the detention of a person, who has been arrested by the Border Guard on suspicion of committing an administrative offence.

In addition, the Instruction of 2004 sets out the obligation to inform the relevant diplomatic missions or consulates about the detention of an alien. As a factor enhancing discipline, the provision is made for the reference number of an outgoing message to a consulate being put on the initial notification of prosecutor about detention.

There is also the obligation to provide the detainee with written information about his/her rights in a language understandable to him/her (point 3.6). The Instruction regulates issues of detainees’ registration in more detail (point 3.5). The person detained undergoes a compulsory medical examination before he/she is placed in custody (point 3.8).

According to the Instruction, the detainee’s correspondence with the Prosecutor, the Human Rights Ombudsperson, and the European Court of Human Rights is not subject to censorship (point 7.2). His/her correspondence with other people, including that with a lawyer may be censored.

The censorship of correspondence with a lawyer, certainly, hampers the exercising by a detainee of his/her rights and to a great extent reduces the positive effect of uncensored correspondence with the aforementioned authorities.

One should mention a very progressive element in the Instruction of 2004, which cannot be found in national legislation elsewhere. According to point 14.11 of the Instruction, a meeting with a lawyer is granted «on the oral or written request of a detainee or request by his/her close relatives, or representatives of civic organizations». In this case, the permission of the investigator or person conducting the inquiry is not mentioned as a condition for granting the meeting.

While it remains unclear how this provision corresponds with a provision of point 14.7 of the Instruction, which, with regard to any meeting, stipulates that permission must be obtained from «the official (detective. investigator, judge, prosecutor), who is in charge of the case». However, according to point 4(E) of the Ukrainian Government’s Response to the Report by the ECPT after its visit of 2002, no additional permission is indeed required. Nonetheless, in view of the long-established practice as to access to a lawyer, it would be desirable to formulate more clearly the possibility of meeting with a lawyer whether or not the investigator permits this, in order to avoid arbitrary interpretations of the provisions of this Instruction by officials responsible for the detention.

3. Court Procedure for remand in custody

The amendments of 2001 to the legislation on criminal procedure were, in fact, limited to institutional transformations and reduced to only shifting the power to detain person from the prosecutor to a judge. The approach to procedure and assessment as to whether remand in custody is justified have remained largely unchanged.

The system for judicial review of the grounds for remand in custody to a great extent copies the earlier system of prosecutor control.

Depending on the duration of remand in custody, the legislators attempt to safeguard the right to liberty by raising the rank at which the decision is made. This is to the detriment, however, of the procedural rights of a detainee (see Chapter 3.3.4). For instance, the participation of an arrested person in a detention hearing concerning the extension of remand in custody for a period over 2, 4, and 9 months is left to the discretion of the judge. The resolution of the Supreme Court of Ukraine reads:

The issue of the defendant’s participation in the hearing must be resolved in each individual case by a judge who shall consider all submitted appeals. The accused is brought to court, for example, when specific circumstances can be clarified only through his/her questioning (health, grounds for his/her claims about wrong or unreasonable delay in the investigation of the case, his/her willingness and ability to provide financial guarantees to be released on bail, etc.).[19]

It is difficult to imagine how one could establish whether a defendant’s claims are of substance, if he/she is not given the opportunity to substantiate them.

Thus, the legislators, as before, underestimate the safeguards of the principle of competition as providing guarantees from arbitrariness, and prefer hierarchical method of control.

3.1. Obstacles for release from custody pending trial

On the basis of provisions in Article 165 of CPC, the situation in practice has arisen where a decision concerning pre-trial detention taken by a court may only be overturned by a court. This shows a certain misunderstanding of the specific features of court decisions on pre-trial detention on suspicion of having committed a crime. In practice, such an approach makes the courts less inclined to release defendants from custody. Moreover, it places the judge, «the traditional guardian of personal liberties» in a somewhat strange position, where he or she may decide in favour of pre-trial detention even in a situation, where the prosecutor is seeking the release of the defendant.

For example, in 2002, the courts satisfied only 93.1% of applications from investigating authorities to terminate remand in custody. In 2003, this number was 92.6%.

This means, therefore, that in 6.9% of cases in 2002 (7.4% in 2003), regardless of the fact that the law enforcement agencies considered that it was safe to release a defendant, the courts still chose in favour of pre-trial detention.

It is entirely possible that, in following this approach, the courts were attempting to resist some other negative phenomena, such as corruption in law enforcement agencies, however such a purpose cannot vindicate the adverse effects for the pre-trial detention policy.

On 20 January 2005, the following amendment was introduced to section 165 of CPC:

In the event of discontinuation of a criminal investigation, the expiry of the remand in custody time period, if this period is not extended in accordance with procedure prescribed by law, and in other cases, the release from custody of the person during 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 detained the accused. Release from custody in criminal cases, which are already in court, is effected only by a decision of the court or judge.

A corresponding amendment was introduced into section 20 of Ukraine’s Law on Preliminary Detention.

Although this law is intended to simplify the procedure for release, the norm created by the provision - «In the event of … the expiry of the remand in custody time period, if this period is not extended in accordance with procedure prescribed by law,… the release from custody of the person during 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 « - has quite the opposite effect. Before this amendment, a norm of Article 20 of the Law of Ukraine on Preliminary Detention was in force, according to which «in the event of … the expiry of the remand in custody time period, if this period is not extended in accordance with procedure prescribed by law,», the person in charge of pre-trial detention institution was obliged to «immediately release the defendant».

3.2. The right to periodic review of detention

Ukrainian legislation does not provide for such an important guarantee for detainees as the right to periodic review of the grounds for their detention, although such guarantee is set out in Paragraph 4 of Article 5 of the European Convention on Human Rights and Article 29 of the Constitution.

The right «to take proceedings» set out in Article 5 § 4 of the European Convention has been developed in detail in the case law of the European Court. The Court interprets Article 5 § 4 of the European Convention as a safeguard in any case of deprivation of liberty:

«Everyone who is deprived of his liberty» lawfully or not, is entitled to a review of lawfulness by a court; a violation can therefore result either from a detention incompatible with paragraph (1) or from the absence of any proceedings satisfying paragraph (4), or even from both at the same time.[20]

The Court also developed a concept of «periodic» review of the lawfulness of deprivation of liberty:

«…to protect the individual against arbitrariness… implies not only that the competent courts must decide «speedily», but also that their decisions must follow at reasonable intervals».[21]

The Court applies the most stringent standards of intervals between reviews to detention on suspicion of committing a crime:

«The nature of pre-trial detention calls for short intervals; there is an assumption in the Convention that pre-trial detention is to be of strictly limited duration (Article 5 § 3), because its raison d’être is essentially related to the requirements of an investigation which is to be conducted with expedition».[22]

«Article 5 § 4 requires that a person held in custody must be able to take proceedings at reasonable intervals to challenge the lawfulness of his detention. In view of the assumption under the European Convention that such detention is to be of strictly limited duration, periodic review at short intervals is called for».[23]

In one of its judgment, in response to a Government’s argument that it was not «reasonable» for the applicant to lodge his second application as to the lawfulness of his detention barely a month after the dismissal of the first, the Court determined that «in the present case an interval of one month is not unreasonable».[24]

Thus, one can conclude that the Court, speaking about «periodical review with short intervals» under definition «short» meant the period of one month.

In Ukraine, the legislators fail to ensure the right, provided by Article 29 of the Constitution, «of each detainee» «at any time to appeal his/her detention in court» as well as the «right for review» provided by Article 5 § 4 of the European Convention on Human Rights.

The review, provided by Paragraph 7 of Article 106 of CPC, is limited by a short-term period of so called criminal-procedural detention (police custody) and addresses only the circumstances of this detention.

Appeal against the decision of a judge as to pre-trial detention (section 165-2 § 7; section 165-3 § 4), clearly does not constitute the protection mechanism foreseen in Article 5 § 4 of the Convention. Such a consideration by its very nature cannot provide the review of «those conditions, which, in accordance with the European Convention, are crucial for the «lawful» detention of a person».[25]

As concerns the substance of the appeal, a higher level court should consider only the basis of the decision taken by a lower level court. However the basis of the decision which has been appealed does not in any way mean the justification for the pre-trial detention at the time of the appeal review, «since the circumstances which justified the original detention may change to such an extent, that they cease to exist.[26] Having recognized the decision of the court under appeal correct, the court of appeal may not release the defendant, even if the circumstances, which justified that correct decision, have disappeared. Moreover, the submitting of an appeal is limited by a term of 3 days and a complaint submitted after that time will be turned down without consideration of its merits; but the doctrine of «periodical review» secures the very possibility of review within a certain period after the previous decision, when it is reasonable to assume changes in the circumstances.

This limitation by the legislators of a detained person’s right of review of the lawfulness of his/her deprivation of liberty contradicts Ukraine’s Constitution and its international obligations. The explanation for such an approach can be found in an unjustifiable narrowing by commentators of the meaning of the word «detention» in the text of article 29 of the Constitution. According to the doctrine of criminal process, «detention» has always meant detention by a law enforcement body before the taking of a decision about remand in custody. This narrow meaning was automatically used for the interpretation of the text of Article 29 of the Constitution.

However, in Article 29 of the Constitution, it is hard to find any indication that its guarantees, including that in part 5, are limited by some particular form of «detention», leaving other forms without guarantees. Moreover, if we turn to so-called «criminal-procedural detention», then as it is of short duration, the right of appeal will virtually always turn into a counter claim to the application of the prosecutor. It is difficult to assume that the Constitution is guaranteeing such a purely technical point of procedure as the possibility of making a counter claim. Even this disproportion between the legal status of the guarantee and its subject matter shows that Part 5 of Article 29 of the Constitution means something very different. It is therefore unjustified to equate the meaning of the word «detention» in Article 29 § 5 of the Constitution, which encompasses any forms of deprivation of liberty, with the highly specific meaning, which «detention» has gained in the doctrine of a criminal process.

It is clear that our legislation, which, by its design, provides for a single detention review, does not correspond to the concept, imbedded in the text of Article 29 § 5 of the Constitution and Article 5 § 4 of the European Convention. As a result, people who are detained in connection with criminal prosecution are deprived of one of the most important guarantees of the right to liberty – the possibility to appeal to the court at reasonable intervals to have the lawfulness of their detention reviewed.

This situation is slightly mitigated by the fact that section 165-3 of CPC provides for an ex officio review of the justifiability of pre-trial detention.

However this article foresees intervals between reviews of five, or even nine, months. Such periods of pre-trial detention without review of their justifiability would be hard to reconcile with the meaning of «short intervals», which the European Court demands. Certainly court practice can rectify this situation if the courts use their authority in a well-considered manner, and extend periods of remand in custody not to the limits permitted, but based on the specific circumstances of a case. However, taking into consideration the heavy caseload of the courts, an opposite trend seems more likely, a trend towards the maximum use of their power to extend remand in custody in order to reduce the workload of the courts.

3.3. The nature of court review

3.3.1. The retention of presumptions in favour of remand in custody

Before the amendments to legislation on criminal procedure were introduced in 2001, a decision on remand in custody or release depended mainly on the gravity of the crime in question. Depending on the gravity, crimes fell into three categories: The first category – crimes, which fell under part 2 of section 155 of the former CPC, where the very charge of having committed one of the crimes listed there, provided sufficient ground for detention. The second category included crimes, which might entail imprisonment for up to one year, when pre-trial detention was admissible only in exceptional cases. The third category fell somewhere between the other two categories, so here a decision was at the discretion of the decision-maker (at that time, the prosecutor).

In 2001, the legislator took an important step forward by excluding paragraph two from section 155 of CPC, thereby admitting that a decision regarding pre-trial detention cannot be based purely on the consideration of the gravity of the criminal charge. This brought legislation into line with the case law of the European Court, according to which «pre-trial detention may be justified in a given case only where there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty».[27]

Another important step, which could have significantly influenced practice of pre-trial detention, was a significant change in the «margin» of judges’ discretion. In 2001, the legislator provided for the mandatory release from custody by a judge of a person charged of a crime, if the possible punishment for it did not exceed three years of imprisonment (Article 155 § 1 of CPC). This change in the legislation was based on the concept that sometimes the right to liberty could outweigh public interests in the right course of legal procedure, and «the state, on the basis of reasonable policy, could sacrifice a certain number of evasions in cases [concerning less serious crimes], but protect liberty of its citizens as an unconditional right, independent of a judge’s discretion».[28] This provision, however, was substantially weakened by the possibility of deviating from the rule «in exceptional cases» (Article 155 § 1 of CPC).

However, this approach was not supported in court practice. The fairly high «margin» of judge’s discretion, provided by the legislator, prompted the court practice to look for definitions, which would adapt this novelty to the prevailing perception of the balance between the right to liberty and public interests.

This is why the Plenum of the Supreme Court of Ukraine in its resolution wrote: «pre-trial detention… is used… when a person is suspected or accused of having committed a crime, which is punishable in law by deprivation of liberty (Article 155 § 1).[29] The conditions, under which pre-trial detention can be used are defined by the Plenum as follows: «detention… is chosen only if there are grounds to believe that other (less severe) preventive measures… could fail to secure fulfilment by a suspect or accused of their procedural obligations…». If one analyses this definition, one can come to the conclusion that in order to detain a person, it is sufficient for a judge to have a mere doubt in the possibility of using other measures.

Thereby the Plenum establishes a presumption in favour of pre-trial detention, since the purpose of any presumption is to artificially resolve a situation of irresolvable doubt. Although, theoretically, it is a refutable presumption, in practice it could be refuted only in exceptional cases. Since the onus is placed on the accused to disprove a judge’s absolutely speculative doubts, in practice, he/she will be forced to prove such circumstances, which under any conditions whatsoever would exclude «breach of his/her procedural obligations». On the basis of such an approach, a defendant could be released pending trial in highly exceptional cases, where it seems even impossible to conceive of such «a breach».

In this connection, one can recall the European Court’s judgment against Bulgaria, where Article 5 of the European Convention was held to have been violated, because the authorities had acted on the basis of the presumption in favour of arrest, established by Bulgaria’s Code of Criminal Procedure and the practice of Bulgaria’s Supreme Court, which «was only refutable in very exceptional circumstances where even the hypothetical possibility of absconding, re-offending or collusion was excluded due to serious illness or other exceptional factors. It was moreover incumbent on the detained person to prove the existence of such exceptional circumstances, failing which he was bound to remain in custody throughout the proceedings». [30]

3.3.2. Circumstances for and against detention

Legislation has formulated the following risks, the need to avoid which could justify pre-trial detention:

- absconding from criminal investigators or from the court;

- obstructing the establishment of the truth in the case;

– pursuance of criminal activity;

- failure to comply with procedural decisions.

This provision gives scope for ambiguity. The vagueness in wording of the first three provisions allowing for remand in custody has been repeatedly criticized by commentators.

Particular concern is given by the creation of an additional justification for detention created by the legislators, – «to ensure correct behaviour» - which is concealed in the definition of bail (Article 154-1 of CPC). The extreme ambiguity of the very term «correct behaviour» makes it impossible to consider this provision as a norm of the required quality, since it does not give any possibility of foreseeing with a satisfactory level of certainty the legal consequences of any particular behaviour.

3.3.3. The impact of lawfulness (unlawfulness) of detention on decisions regarding remand in custody

Another important problem, which is yet to be adequately resolved in legislation and court practice, is the impact of the lawfulness of criminal-procedural detention on subsequent decisions as to remand in custody.

According to the analytical summary of court practice, «the subject of court investigation», among other things, «should be… the appropriateness of the detention of the individual (if it took place)…»[31]

However, according to the resolution of the Plenum of Ukraine’s Supreme Court, «recognition of detention as unlawful shall not be grounds for turning down an application for remand in custody»

The total exclusion by the Plenum of the Supreme Court of Ukraine of the lawfulness of detention by law enforcement officers from the list of circumstances, which could influence the outcome of a decision as to remand in custody leads to adverse consequences for legal practice.

Such a situation effectively allows law enforcement agencies to carry out arbitrary detention. The detention of an individual by a law enforcement agency without grounds as set out in legislation, or side-stepping procedure stipulated there, will have no consequences as long as before the court review it obtains the necessary information to have the person held in custody.

This leads to the evermore widespread practice of arbitrary arrests and slows down the development of clear legal criteria for lawful detention without a court order.

3.3.4. Procedural rights of the parties

Legislation, as before, does not allow for the fundamental rights of the accused (the suspect) during court hearings held in order to decide whether to remand the person in custody or to release him or her pending trial.

According to case law of the European Court of Human Rights, in decisions involving deprivation of liberty, the detainee has the right to judicial procedure. A court considering an appeal against detention must ensure guarantees of judicial procedure. The review must be adversarial and ‘equality of arms’ between the parties, the prosecutor and the detained person must be ensured»[32] «in view of the dramatic impact of deprivation of liberty on the fundamental rights of the person concerned, proceedings conducted under Article 5 § 4 of the Convention should in principle also meet, to the largest extent possible under the circumstances of an on-going investigation, the basic requirements of a fair trial, such as the right to adversarial procedure. While national law may satisfy this requirement in various ways, whatever method is chosen should ensure that the other party will be aware that observations have been filed and will have a real opportunity to comment thereon». [33]

The European Court has developed fairly well-established standards as to the guarantees for judicial procedure, which a detainee should have.

These include the right to personally participate in the hearing,[34] and, in some cases, the right to effective legal assistance.[35] The very concept of effective participation provides for a number of guarantees: the right to know the arguments of the other party[36], the right of access to those documents in the investigation file which are essential to effectively challenge the lawfulness of detention[37], the right to have sufficient time for preparation of one’s position and the right to respond to additional arguments, presented by the prosecution in the course of judicial procedure.[38]

Our legislation on criminal procedure has failed to develop those elements which are crucial in transforming detention hearings into judicial procedure. This weakens the efficiency of the legal means of protection foreseen by Articles 165-2 and 165-3 of CPC, which can be considered a violation of both the Constitution and Ukraine’s obligations under the European Convention on Human Rights.

The requirement for personal participation of the detainee provides in the first place for bringing him/her to court. The Convention particularly stresses this point in Article 5 § 3. The requirement for presence and participation of a detainee at the hearing has several purposes: the prevention of cruel treatment towards the suspect during his/her detention; providing the possibility to follow the course of the hearing and to take adequate steps to argue one’s position and to refute the arguments of one’s adversary; providing a possibility for a judge to see the detainee directly, and not purely from the case file presented by the prosecution.

In our legislation, participation of a suspect or defendant in an initial detention hearing is obligatory (Article 165-2 of CPC).

However, his/her participation in a hearing on the extension of remand in custody is left to the judge’s discretion (Article 165-3 of CPC). This inconsistency of the legislators could lead to violation of the obligations under the Convention.

It should be taken into consideration that a decision to extend detention for over 4 months must be taken by a judge of the appeal court, and for over 9 months by a judge of the Supreme Court of Ukraine. Under these conditions, it is difficult from a logistical point of view to ensure the defendant’s (suspect’s) participation in court hearings.

Neither Article 165-2, nor Article 165-3 of CPC provide for the right of the accused and/or of his/her lawyer to be made aware in sufficient time about the reasons for a detention request and, consequently, they do not describe procedure for such notification.

Article 165-2 reads:

After a judge obtains a request, he/she studies the case-file, presented by the detective inquiry unit, the criminal investigation (pre-trial) department or the prosecutor; questions the suspect or accused, and, if necessary, receives explanations from the person in charge of the case, listens to the opinion of the prosecutor, the defending lawyer, if the latter has appeared, and issues a resolution:

1) to turn down the application for remand in custody, if there is no basis for it;

2) to remand in custody the suspect or accused.

The Plenum of the Supreme Court in its resolution[39] has also failed to solve this issue. To a certain extent, it is possible to assess the Plenum of the Supreme Court’s approach to the guarantee of effective participation of the defendant in the detention hearing on the example of access to case files.

Although the right to know the arguments and evidence of one’s adversary is one of the most important elements of the «equality of arms», in national practice, this right clashes, like in many other instances, with the issue of the secrecy of the criminal investigation.

The needs of the criminal investigation, which, undoubtedly, could justify keeping some evidence secret in national judicial practice have become wildly distorted. The defending counsel often finds the most fundamental requests for information about the prosecution’s case turned down.

Legislation fails to give an exact answer to the question as to whether a detainee and his/her lawyer are entitled to study the materials, which a prosecutor presents to court along with a request to detain the accused (suspect). The lawyer’s right of access to these materials could be deduced from an interpretation of Article 165-2 of CPC in conjunction with Article 48 of CPC, which in part 1 reads:

«From the moment he/she is permitted to participate in the case, a lawyer is entitled:

3) to study the materials, which justify the suspect’s detention, pre-trial custody, and charge…»[40]

However, according to the interpretation of Resolution No. 4 of 25 April 2003 «On pre-trial detention and its extension», neither the accused, nor a suspect, nor his or her lawyer have this right. The Plenum concludes:

According to Article 165-2 of CPC, the material of the criminal investigation is given to a judge for consideration by a detective inquiry unit, criminal investigator or prosecutor. These materials are not registered in court, and the judge should study them in such a way as to prevent disclosure of pre-trial investigation data. In this case, the law does not allow for the studying of the case file by a suspect, defendant, their lawyers or legal representatives in court.[41]

Courts apply this resolution of the Plenum of the Supreme Court, so the defence, in practice, has no access to the materials, which substantiate an application for remand in custody or its extension.

This situation contradicts the provisions of Article 5 §§ 3 and 4 of the Convention, because it fails to provide the accused (suspect) with guarantees of judicial procedure.

The principle of «equality of arms» means that parties in the process know which arguments each of them is going to bring to court, and have a reasonable opportunity to prepare their objections and evidence in order to refute their adversary’s arguments. If the circumstances of the case remain unknown to the parties, «then the very idea of parties withers»[42]

The access to a case file is seen by the European Court as an integral part of the concept of «equality of arms» in judicial hearing.

The right to legal representation in the course of a detention hearing is considered by legislation to be an integral part of the general right to defence against a charge. Legislation lacks any special provisions regarding the obligations of a judge or officials from a law enforcement agency to provide legal assistance during a detention hearing.

Also, the notification of the accused or his/her lawyer about the date and time of a detention hearing is not provided for. In the absence of these basic guarantees, the lawyer’s participation is made dependant on sheer chance: «if he/she appeared». Since neither court, nor prosecutor, nor investigator are obliged to inform the lawyer about a hearing, or even to give him/her this information at his/her request, the lawyer’s participation in the hearing becomes dependant on the prosecutor or judge’s inclination to give the lawyer any information.

The guarantees of judicial procedure are closely interconnected: personal participation in the hearing, right to assistance by a competent lawyer, and access to the case file – these are fundamental guarantees, which, altogether, provide the possibility for effective defence against violations of the right to liberty.

3.4 Limitations in the judge’s authority to consider an appeal to extend the period of remand in custody

There is uncertainty as to the judge’s authority at a hearing on extension of the period of remand in custody, in particular: whether the judge may, after he/she turns down a resolution to extend the period of remand in custody, release the detainee, applying another preventive measure.

The problem is that Article 165-2 of CPC reads: «After the court has rejected remand in custody, it is authorized to impose on a suspect or accused a preventive measure, other than remand in custody».

Article 165-3 of CPC, which regulates the procedure of extension of the period of remand in custody, does not provide this authority directly.

On this issue, the Plenum of the Supreme Court of Ukraine said the following:

After establishing the grounds for changing (terminating) remand in custody, a judge, by his/her resolution, dismisses the application for extension of remand in custody and can change (terminate) this preventive measure.[43]

However, uncertainty in legislation gives rise to opposite interpretations even among judges of the Supreme Court; this could lead to the situation, where practice narrowly interprets the scope of judge’s authorities in the course of detention hearings.

With this interpretation, a judge faces only two alternatives: either to extend remand in custody, or to unconditionally release the detainee. The absence of the possibility to release under reasonable guarantees is an additional restraining factor against making a decision about release, because a judge, who has doubts about the possibility of unconditional release, would be forced to prolong defendant’s detention.

3.5. Terms of pre-trial detention

Legislation, as before, establishes a maximum term for detention only for pre-trial investigation, but not for court hearings. That is why the duration of court hearings directly affects the duration of detention.

In its analysis, the Supreme Court of Ukraine admits that «red tape is still widespread in court hearing… of cases. Of special concern are the cases, when it is allowed in relation to defendants, who are remanded in custody».

3.6. Alternatives to detention. Bail

Ukraine’s Criminal Procedure Code provides for several alternatives to detention:

– a written undertaking not to abscond;

– a personal surety;

– the surety of a public organisation or labour collective;

– bail;

– remand in custody;

– supervision by the command of a military unit.

One of the effective measures, which could reduce the recourse to pre-trial detention, is bail. According to court statistics, in 2002, 105 people were released on bail[44], in 2003 – 110 people[45]. The Supreme Court concluded that courts inadequately use this measure because of citizens’ poor financial condition».[46]

However, the problem of inadequate use of bail depends not only on the financial condition of suspects. A number of other factors have much greater impact.

In Ukrainian legislation, bail is designed as a separate preventive measure, not as a condition of pre-trial release. On the basis of such logic of the law, bail can be used in cases, when there are no adequate grounds for detention. However, the Plenum of Ukraine’s Supreme Court offered an interpretation, which corresponds more closely to the legal meaning of bail: «A court should… choose this preventive measure instead of remand in custody…».[47]

A substantial shortcoming of the bail regulation is that the amount of the bail depends on the possible amount of the material claim by a victim, because part 2 of Article 154-1 reads: «In all cases, the amount of the bail cannot be lower than the amount of a civil suit, substantiated with sufficient evidence». This norm is supported by provisions of part 7 of Article 154-1 of CPC, which reads «the bail deposited by a suspect or accused can be designated by a court for execution of the sentence as a part of material penalty».

According to the European Court case law, «… concern to fix the amount of the guarantee to be furnished by a detained person solely in relation to the amount of the loss imputed to him does not seem to be in conformity with Article 5 (3) of the Convention. The guarantee provided for by that Article is designed to ensure not the reparation of loss but rather the presence of the accused at the hearing. Its amount must therefore be assessed principally by reference to him, his assets and his relationship with the persons who are to provide the security, in other words to the degree of confidence that is possible that the prospect of loss of the security or of action against the guarantors in case of his non-appearance at the trial will act as a sufficient deterrent to dispel any wish on his part to abscond».[48]

In addition, the legislation lacks clear provisions about the procedure of bail hearing. The law fails to answer the question, what to do with a defendant (suspect) after the decision to release him or her on bail has been taken, but the bail has yet to be deposited. Also, the law does not regulate the procedure for the defendant’s (suspect’s) release after he/she has deposited the bail. In view of practical conditions for the use of this preventive measure, the absence of clear regulations leads to a situation where judges award bail extremely reluctantly as a means for securing the due course of legal proceeding, and this, in turn, unjustifiably increases the number of people facing prosecution (suspects), who remain in custody pending trial, even though in some cases, bail could well have achieved the same objective.

The Plenum of the Supreme Court in its resolution[49] has tried to resolve some procedural issues; but these are only the first steps toward establishing clear and transparent rules.

However, a few provisions of the resolution by the Plenum of the Supreme Court «On the use of bail by courts» could serve as a basis for detaining a person accused, even if the deposited bail guaranteed attendance of the accused during legal proceeding, but breached formal requirements of the law. In point 1 of the Resolution, the Plenum says: «If at the pre-trial stage of the investigation, bail was imposed on an accused, a court, during a preliminary hearing of the case, must verify, if that decision meets the requirements of Article 154-1 of CPC. In cases where serious violations of the law took place, the court must eliminate them (for example, by balancing amount of the bail with requirements of Article 154-1 of CPC) or replace one preventive measure with another…».

Such an instruction comes from the legislative requirements as to the minimum amount of bail. However, this might lead to detaining the accused (suspect), even if the amount of bail, lower than the legislative minimum, proved to be sufficient for securing the due course of legal proceeding.

The Plenum has also created an overly rigid standard for proving that the bail is sufficient to meet the objectives of legal proceeding. According to the Plenum’s instruction, a court may choose this preventive measure instead of detention «only when there are all grounds to believe that it could secure the defendant’s correct behaviour and fulfilment of his/her procedural obligations, as well as execution of the sentence». [50]

Absence of clear procedures for the use of bail makes the acceptance of bail in non-monetary form especially complicated. Because of the generally low standard of living in Ukraine, the overwhelming majority of people accused (suspects) do not have spare cash, sufficient to meet the minimum amount of bail, established by the law. The possibility of offering bail in the form of real estate or other property could become a good solution for many of them.

Nevertheless, courts are reluctant to accept bail in non-monetary form. This is influenced also by the Plenum of the Supreme Court’s instruction in Resolution No. 6 of 26 March 1999 (point 5): «The property should have such characteristics, such quality, and such legal status, so that execution of a court decision to deprive a accused, suspect, or surety of his/her property rights on it would not be fraught with any difficulties».

Although, undoubtedly, courts should verify the enforceability of extracting bail, the instruction to prevent «any difficulties» could lead to unreasonable reluctance on the part of judges to bail. It is worth citing an excerpt from the European Court’s judgment in a case against Poland:

«Regard must be had to the fact that the authorities at a certain point refused to allow that the bail be deposited in the form of a mortgage…. This, in the Court’s view, implies that the authorities were reluctant to accept the bail, which, in case of the applicant’s non-appearance for the trial, would require undertaking certain formalities in order to seize the assets. This in itself, in the Court’s opinion, cannot be regarded as sufficient grounds on which to maintain for four months pre-trial detention which had already been deemed unnecessary by the decision of a competent judicial authority».[51]

Also the use of bail could be complicated by provisions of Article 154-1 § 4 of CPC, which reads: «until the case is sent to court, bail concerning a person, who is held in custody, may be chosen only if permitted by the prosecutor, who sanctioned the arrest, and after the case has reached the court, only if permitted by the court».

This creates some uncertainty concerning the authority of a judge following a detention hearing to independently, not if «permitted by the prosecutor», replace detention with bail.

In practice, there are some organizational difficulties: inaccessible rules of bail hearing for a detainee and other persons, who can and want to deposit a bail; often inaccessible information about depository accounts of law enforcement agencies and courts, where money can be deposited.

Recommendations:

 to introduce amendments into the legislation, which would exclude the practice of detention without a warrant in cases, which are not provided for by Article 29 § 3 of the Constitution, in particular, to provide a clearer formulation of circumstances, in which a law enforcement officer is empowered to detain a person without warrant;

 to adjust the period of bringing a person before a judge, provided by Article 106 of CPC with the requirements of Article 29 of the Constitution, taking into account the time, necessary for a detention hearing;

 to determine a starting point for detention on suspicion of committing a crime or an administrative offence depending on factual circumstances, which confirm the actual time when a person was first deprived of their liberty, not the decision of a law-enforcement officer, or, at least, extend the guarantees, given to a detainee, to persons, who are being held in the custody of a law enforcement agency as having been ‘brought’ there;

 to define in the law separate criteria of legality for detention and remand in custody (pre-trial detention) and annul provisions in point 2.5 of the Joint Order by Ukraine’s Ministry of Internal Affairs and the State Penal Department 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 breach of the law, and other similar instructions;

 to include in the subject matter of detention hearing circumstances, which address reasons for arrest without warrant, including:

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

– reasons for the period, which a person is held in custody of a law enforcement agency until he/she is brought before a judge;

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

 to introduce provisions, which would exclude remand in custody or its extension on the basis of purely hypothetical assumptions that a person could abscond, hamper the establishment of truth in the case, or continue his or her criminal activity;

 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 defence;

 to exclude from the law provisions, which allow remand in custody for carrying out possible procedural decisions (Article 148 of CPC) and securing correct behaviour (Article 154-1 of CPC), as these provisions fail to meet the criteria of clarity and predictability;

 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;

 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;

 to introduce amendments into Article 165-2 § 4 of CPC, in order to exclude detention without judicial control over the period established by Article 29 § 3 of the Ukraine’s Constitution;

 to entitle persons, who are detained to seek periodic review of the basis of their detention;

 to establish clear and detailed procedural rules for detention hearings and provide, in particular:

– mandatory participation of the person, who is deprived of liberty, in any detention hearing;

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

– the right of the accused and his/her lawyer to study the materials, which justify the request for his/her remand in custody or extension of custody;

 to work out procedures, which would encourage the use of bail instead of detention;

 to determine 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;

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

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

 to exclude from Article 1176 of the Civil Code of Ukraine and section 2 of the Law of Ukraine «On the procedure for compensation of damage caused to the citizen by unlawful actions of bodies of inquiry, pre-trial investigation, prosecutors and courts» formulations, which prevent any person, who has suffered unlawful deprivation of liberty, from compensation for damages;

 to adjust rules of administrative detention with the requirements of Article 29 of the Constitution;

 to introduce amendments into the legislation, which would exclude the use of administrative detention for the purpose of criminal investigation, for example, by providing obligatory release of a suspect in committing an administrative offence pending a trial of the case;

 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;

 to provide procedure for court hearings concerning the detention of vagrants, or, at least, enable them to appeal such detention and provide rules for a judicial procedure;

 to provide, that detention and subsequent remand in custody of a person pending extradition must be enforced exclusively on the basis of a court decision, as well as the right of a person to periodic review of detention pending extradition;

 to re-establish a legal provision, which obliges the head of a pre-trial detention centre or other detention facility to release on his own decision a person, if there is no court decision in force to hold this person in custody.



[1] The Report of the ECPT can be found at: www.cpt.coe.int

[2] Analysis of the work of courts with general jurisdiction in 2002, according to court statistics, prepared by the Department of Court Practice Generalization and Analytical Work on the Issues of Implementing legislation at the Supreme Court of Ukraine // www.scourt.gov.ua

[3] Analysis of the work of courts with general jurisdiction in 2003, according to court statistics, prepared by the Department of Court Practice Generalization and Analytical Work on the Issues of Implementing legislation at the Supreme Court of Ukraine // www.scourt.gov.ua

[4] Statistics of convictions and imposition of criminal punishment were prepared by the Department of Court Practice Generalization and Analytical Work on the Issues of Implementing legislation at the Supreme Court of Ukraine // www.scourt.gov.ua

[5] Unfortunately, from the court statistics, it is impossible to find out which specific rulings were rejected, those sanctioning remand in custody or those opting for release pending trial.

[6] This provision of the Constitution came into force on 28 June 2001

[7] There are two separate departments in Ukraine: the (detective0 inquiry unit [дізнання] concentrates on whether or not a crime has been committed and who is responsible; the (pre-trial) investigation department [слідство] is involved later, once there is an actual suspect, or person charged, in gathering evidence, etc, to gain a prosecution (translator’s note.)

[8] Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 8 to 24 February 1998

[9] Joint Order by Ukraine’s Ministry of Internal Affairs and State Penal Department No. 300/73 of 23 April 2001 «On measures to secure legality during the detention of persons suspected of having committed a crime, decision on preventive measures in the form of remand in custody of such a person and adherence to legally stipulated time limits for detention and detention in custody during pre-trial investigation», point 2.5.

[10] Report on the results of the research conducted at the Kyivskiy District Court in Kharkiv in the framework of a pilot research project «Police arrest and pre-trial detention in Ukraine» (chief researcher – Professor V.S. Zelenetsky, Doctor of Law, Corresponding Member of Ukraine’s Academy of Legal Sciences).

[11] Ibid.

[12] Analytical summary of the court practice of detention hearings in the Melitopol City-Disctrict Court, Priazovskiy, Akymovskiy, and Veselovskiy District Courts. (The summary was made by Judges G.I. Aleynikov and M.I. Galyanchuk of the Zaporizhye Appeal Court).

[13] Law of Ukraine No. 266/94-BP of 1 December 1994 (Vidomosti Verkhovnoyi Rady, 1995, No. 1 p.1)

[14] The Plenary Session of the Supreme Court to a certain degree weakened the restrictions of Article 29 of the Constitution. It is clear that not only detention for over 3 days, but also detention for extradition without preliminary court warrant are in contravention of Article 29 of the Constitution. An application from another State for extradition of a suspected offender does not create a situation of «urgent necessity to prevent a crime or terminate it», so the detention requires a preliminary court decision. A similar approach should be applied to temporary detention prior to obtaining an application for extradition.

[15] ECHR, Quinn v. France: Judgment of 22 March 1995, Series A no. 311, § 48; ECHR, Chahal v. the United Kingdom: Judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, § 113

[16] This Instruction replaced Instruction No. 176 of 12 April 1996 «On procedure for the detention and guarding of detained persons at the Border Guard of Ukraine», approved by the Head of the State Committee, the Commander of the Border Guard Forces of Ukraine.

[17] This law came into force on 1 August 2003 replacing the Law «On the border guard forces of Ukraine»

[18] Section 32 of the Law on Legal Status of Aliens and Stateless Persons was amended in November of 2003.

[19] Resolution No. 4 of 25 April 2003 «On the use of pre-trial detention and its extension», point 18.

[20] ECHR, De Wilde, Ooms and Versyp v. Belgium: Judgment of 18 June 1971, Series A no. 12, § 73

[21] ECHR, Herczegfalvy v. Austria: Judgment of 24 September 1992, Series A no. 244, § 75

[22] ECHR, Bezicheri v. Italy: Judgment of 25 October 1989, Series A no. 164, § 21

[23] ECHR, Assenov and Others v. Bulgaria: Judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, § 162

[24] ECHR, Bezicheri v. Italy: Judgment of 25 October 1989, Series A no. 164, § 21 This decision was included in the collection of standards concerning detention. (See: Professional Training Series No 3. Human Rights and Pre-trial Detention. A Handbook of International Standards relating to Pre-trial Detention. Centre for Human Rights, Geneva, Crime Prevention and Criminal Justice Branch, Vienna. United Nations. New York and Geneva, 1994. These standards were published in Russian – Kharkiv: Konsum, 1997, – and in Ukrainian: – Kyiv, 2000.)

[25] ECHR, X v. the United Kingdom: Judgment of 5 November 1981, Series A no. 46), § 58, ECHR, Weeks v. the United Kingdom: Judgment of 2 March 1987, Series A no. 114), § 59

[26] ECHR, Van Droogenbroeck v. Belgium: Judgment of 24 June 1982, Series A no. 50, § 49

[27] ECHR, Kalashnikov v. Russia: Judgment of 15 July 2002, § 114

[28] Lyublinskiy P. Personal liberty and criminal process. Means for securing attendance of accused person during criminal proceedings. Saint-Petersburg (Russia), 1906

[29] Resolution No. 4 of 25 April 2003 «On the use of pre-trial detention and its extension», point 3.

[30] ECHR, Ilijkov v. Bulgaria: Judgment of 26 July 2001, § 83

[31] Analytical summary of the court practice of detention hearings in the Melitopol City-Disctrict Court, Priazovskiy, Akymovskiy, and Veselovskiy District Courts. (The summary was made by Judges G.I. Aleynikov and M.I. Galyanchuk of the Zaporizhye Appeal Court)..

[32] ECHR, Niedbała v. Poland: Judgment of 4 July 2000, § 66

[33] ECHR, Schöps v. Germany: Judgment of 13 February 2001, § 44

[34] ECHR, Sanchez-Reisse v. Switzerland : Judgment of 21 October 1986, Series A no. 107, § 51

[35] ECHR, Megyeri v Germany : Judgment of 12 May 1992, Series A no 237-A, § 25

[36] ECHR, Ilijkov v. Bulgaria : Judgment of 26 July 2001, § 104

[37] ECHR, Lietzow v. Germany : Judgment of 13 February 2001, § 44

[38] ECHR, Kawka v. Poland : Judgment of 9 January 2001, § 60

[39] Resolution No. 4 of 25 April 2003 «On pre-trial detention and its extension».

[40] Notably, section 43 and 43-1, which contain a list of accused and suspect’s rights, do not provide for a similar right.

[41] Resolution No. 4 of 25 April 2003 «On pre-trial detention and its extension», point 6.

[42] Foynitskiy, I.Ya., Course of Criminal Procedure, Vol. 1, p. 95

[43] Resolution No. 4 of 25 April 2003 «On the use of pre-trial detention and its extension», point 20.

[44] The analysis of work of general jurisdictions’ courts in 2002, according to the court statistics, prepared by the Department of Court Practice Generalization and Analytical Work on the Issues of Implementing the Law at the Supreme Court of Ukraine // www.scourt.gov.ua

[45] The analysis of work of general jurisdictions’ courts in 2003, according to the court statistics, prepared by the Department of Court Practice Generalization and Analytical Work on the Issues of Implementing the Law at the Supreme Court of Ukraine // www.scourt.gov.ua

[46] The analysis of work of general jurisdictions’ courts in 1st half of 2002, according to the court statistics, prepared by the Department of Court Practice Generalization and Analytical Work on the Issues of Implementing the Law at the Supreme Court of Ukraine // www.scourt.gov.ua

[47] Resolution No. 6 of 26 March 1999 «On the use of bail by courts», (along with amendments of 6 June 2003), point 2.

[48] ECHR, Neumeister v. Austria : Judgment of 27 June 1968, Series A no. 8, § 13–14.

[49] Resolution No. 6 of 26 March 1999 «On the use of bail by courts».

[50] Resolution No. 6 of 26 March 1999 «On the use of bail by courts», (along with amendments of 6 June 2003) point 2.

96 ECHR, Iwańczuk v. Poland : Judgment of 15 November 2001, § 69

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