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Human rights in Ukraine – 2007. 3. The right to liberty and security

   

[1]

Legislation and practice as regards ensuring the right to liberty has basically not changed and therefore the problems and recommendations set out in the reports from 2004-2007 remain current.

In this section we will concentrate on issues which emerged in 2007.

Lengthy remand in custody pending extradition

In the last reports it was noted that people held in custody pending extradition are not able to initiate a court review of the grounds for their remand in custody, this violating Article 5 § 4 of the European Convention. The violation is all the more significant since there is no form of mandatory periodic review of this issue unlike review of remand in custody during a criminal prosecution.

As a result, people held in custody pending extradition for any length of time, for example, in compliance with temporary measures by the European Court of Human Rights in accordance with Rule 39 of the Court Regulations, do not even have the possibility to appeal to the courts against being their confinement.

Mykola Soldatenko who is awaiting a decision regarding possible extradition to Turkmenistan has been held in custody since 3 January 2006, while Ivan Stankevych and Viktor Kreidych whose extradition is sought by Belarus, have been held since 6 and 18 July 2007 respectively.

Oleg Kuznetsov (following an extradition request from the Russian Federation) has been held in custody since 19 July 2007, and Kateryna Dubovik (sought by Belarus), since 26 August 2007.

Amir Kabulov whose extradition is sought by Kazakhstan has been in custody since 23 August 2004, i.e. more than three years and eight months, a period which must elicit concern.

Over the entire period elapsing since the initial court order to hold them in custody, these people have not had the possibility of initiating a review as to whether their remand in custody is warranted and of applying for another preventive measures to be applied.

In fact the legal system in Ukraine makes it possible to hold a person who is going through extradition procedure in custody indefinitely. The rules of court jurisdiction are built in such a fashion that the court system “sees” people in custody pending extradition once only, when being taken into custody after which the person drops out of view.

Arbitrary detention of refugees

The shortcomings in the system became glaringly apparent in 2008 when two people held in custody over extradition procedure were granted refugee status.

  On 27 August 2007 Kateryna Dubovik was taken into custody by court order from the Holosiyvsky District Court in Kyiv in connection with a request for her extradition from Belarus. On 13 September 2007 this court order was upheld by the Kyiv Court of Appeal.

  On 5 March 2008 Ms Dubovik was granted refugee status. Article 3 of the Law “On the status of refugees” prohibits the extradition of a refugee to a country where he or she could be subjected to torture or other cruel, inhumane or degrading treatment or punishment. Since Ms Dubovik was granted asylum specifically on those grounds, her refugee status is an indisputable obstacle to her extradition.

On 7 March the lawyer representing her interests lodged an appeal with the Holosiyvsky District Court in Kyiv where, citing these circumstances, he asked the court to release her from custody.

In a letter from 12 March 2008 Holosiyvsky District Court Judge O.F. Mazuryk answered: “we inform that the Kyiv Court of Appeal, with its ruling on 13.09.2007, already considered the criminal cases in accordance with the appeal lodged by the defenders of the detained woman K.V. Dubovikза against the ruling of the Holosiyvsky District Court in Kyiv from 27 August 2007 which has already come into force and must be enforced.

Thus:

- the lawyer’s appeal was not given court examination, and the ruling which effectively denies judicial defence was issued bypassing any procedure;

- the judge cited circumstances which were not the subject of the appeal since the latter did not concern the lawfulness of the ruling from 27 August 2007, but the new situation which had arisen following Ms Dubovik’s having been granted refugee status;

- the judge, by not passing a procedural decision, created an insurmountable obstacle against appealing his decision in a higher court.

An analogous situation has arisen with Mr Kuznetsov who was being held in custody pending extradition and was granted asylum on the same day, 5 March 2008.

  Both refugees are presently still in custody.

  One can draw several conclusions.

  The status of people who are within the extradition procedure is not defined. The strict structure of the court system which traditionally divides cases into criminal and not criminal makes it unable to identify a situation which is not typical for it and cannot determine jurisdiction in such a case, effectively depriving such people of court protection.

  Article 5 § 4 of the Convention which guarantees access to the court to determine the justification of any form of deprivation of liberty provides a simple way out of this legal dead end is not implemented by the Ukrainian authorities on a systematic level.

The Ukrainian courts are unable to define the legal nature of the extradition procedure which prevents them from determining the jurisdiction in such cases.

It is interesting that the Russian legal system has moved much further in this respect. The Russian Federation Constitutional Court has stated that in the extradition process the right to liberty must be accompanied by the same guarantees as other types of criminal procedure. It has unequivocally indicated that the use of preventive measures for the purpose of extradition must be regulated not only by Article 466, but also by norms of a general nature contained in Chapter 13 of the RF Criminal Procedure Code.

Ensuring the right to legal aid

We should note the efforts of individual judges aimed at ensuring the rights of detainees in areas where pilot offices providing free legal aid are functioning.  The example can be cited of the separate judgment of the Bila Tserkva City-District Court in the Kyiv region over the Head of the Bila Tserkva City Police of the MIA Central Department for the Kyiv region [the Bila Tserkva CP] with regard to identified infringements of current legislation. The judgment particularly stresses that a police office may not question a person detained or put questions to him or her before a public defender from the office functioning on the territory of the police department has been called.

SEPARATE JUDGMENT

On 15 February 2008 the Bila Tserkva City-District Court in the Kyiv region

Under presiding judge  V.M. Savin

and secretary   S.I. Hulchenko

with the participation of  Prosecutor R.L. Nechyporenko

    lawyer V.E. Kikkas

representative of the Juvenile Affairs Service  P. Stepanenko

having in an open court hearing in the city of Bila Tserkva examined the case involving charges against K***, 1991 date of birth, Ukrainian citizen, incomplete secondary education, school student *** in Bila Tserkva, unmarried, originally from and residing in Bila Tserkva, St. +++, with no previous conviction, of committing a crime under Article 15 § 2 and Article 186 § 1 of the Criminal Code

DECIDED

In a court ruling from 15 February 2008 K*** was released from criminal liability under Article 15 § 2 and Article 186 § 1 of the Criminal Code with the application in his cases of compulsory measures of an educational nature with the proceedings against him in the criminal case being terminated.

In the court hearing it was established that K*** had been detained by CP-2 of the Bila Tserkva Police on 18.12.2007 directly after an attempt to commit a crime set down in Article 186 § 1 of the Criminal Code.

After he was detained and brought to the CP-2 building, the Head of the Criminal Police Juvenile Department of the Bila Tserkva PD2, Police Major *** being fully aware that K*** was underage, questioned him and took an explanation, explaining only:

the requirements of Article 63 of the Constitution, not however explaining to either K*** or his mother K*** whom he summoned, after talking with her son, by telephone about the possibility of receiving free legal aid from highly-qualified lawyers.

15 February 2007 saw the official opening in Bila Tserkva  of a Public Defence Office, created on the base of the Bila Tserkva civic organization “Public Committee for the Promotion of the Constitutional Right to Legal Aid, in implementation of the Presidential Decree “On a strategy concept for developing a system of free legal aid” from 09.06.2006 № 509/2006.

On 15 February 2007 Agreement No. 1 was concluded on carrying out an experience in organizational forms of providing free legal aid between this civic organization, the Central Department of the Ministry of Internal Affairs in the Kyiv region, and the Bila Tserkva Police on cooperation in providing detained persons with free legal aid. As a supplement to this agreement, an instruction was passed for staff of the Bila Tserkva Police.. On the basis of those documents, an MIA officer shall not question a detained person and will not ask any other questions, and must phone the Public Defence Office to call a public defender. The detained person must definitely be informed of such a possibility.

Head of the Criminal Police Juvenile Department of the Bila Tserkva CP-2, *** did not fulfil this duty.

Nor did the investigator *** who took over the case on 21.12.2007 inform K*** and his mother K*** about this possibility to receive free legal aid.

In the court hearing it was established that К*** is a single mother with four children and a difficult financial position. Despite this, Investigator *** of her own initiative presented  the mother of the defendant with lawyer B*** with whom K*** was forced to conclude a fee-paying agreement for providing legal assistance to her son which she informed the court about during the court hearing.

Furthermore, lawyer B*** did not appear at the court hearing on 14.02.2008, and did not provide a lawyer to replace him.

The court of its own initiative informed the Public Defence Office about the need to provide free legal aid and was forced to adjourn examination of the case.

During the examination of the case lawyer V.E. Kikkas provided free legal aid to the defendant and his mother.

Responsible for a criminal case involving a crime by people underage, the investigator into the case *** did not carry out her duty to inform the Juvenile Affairs Service of the Bila Tserkva City Executive Committee about the crime.

It was also established during the court hearing that the pre-trial investigation had been conducted with infringements of Chapter 36 of the Criminal Procedure Code (СPС).

Article 433 of the CPC states that in conducting pre-trial and court examinations into cases involving crimes by juveniles, aside from circumstances set out in Article 64 of the CPC, it is also necessary to ascertain the state of health and of general development of the minor, their living conditions and upbringing; circumstances which adversely influence the upbringing of the minor, through questioning their parents, and other people who can provide such information, as well as demanding the necessary documents and carrying out other investigation activities in this area. The above-mentioned activities are mandatory for the investigator into the case.

Investigator *** did not properly fulfil the requirements of current legislation on these issues and confined herself to questioning the defendant’s mother and teacher of foreign literature***/  At the same time it can be seen from the case material that the defendant is living with his adult brother and elder sister. The lad’s neighbours were not questioned, nor his form teacher or the school’s social pedagogue with regard to his behaviour and upbringing from elementary grades and his overall development.

The investigator also failed to find out about the boy’s state of health, restricting herself merely to questioning the Head Doctor in the Bila Tserkva Psycho-as to whether K*** was on their records.

The court also drew attention to the fact that investigator ***did not fulfil the requirements of the agreement made on 01.02.2006 between the Supreme Court, the Prosecutor General, the Ministry of Internal Affairs, the State Department for the Execution of Crimes and the Swiss Agency on Development and Cooperation regarding implementation of the project “Support for the reform of the system of pre-trial detention”.  This was part of implementation of the provisions of the Presidential Decree No. 39/2006 from 20 January 2006 “On an action plan for implementing Ukraine’s duties and commitments following from its membership of the Council of Europe.”

On 02.03.2006 the Deputy Minister of the MIA P.V. Kolyada in his letter addressed to the Head of the Central Department of the MIA for the Kyiv region V.O. Yakovenko pointed out that this agreement was binding upon employees of the investigation unit of the Central Department of the MIA for the Kyiv region and of the investigation subdivisions of the Bila Tserkva city and district police stations.

One of the important elements of this agreement is the conducting of a pre-trial study of the person who committed the crime by the inspectors of the Bila Tserkva Police Penal Inspectorate which enables the court to better understand the offender and choose the most appropriate form of punishment. This approach also makes it possible for inspectors of the Bila Tserkva Police Penal Inspectorate to provide accompaniment for the offender during the pre-trial investigation and court proceedings in order to identify and eliminate the reasons for the crime, reform such people and prevent them from committing new crimes.

Investigator *** did not fulfil her duty to inform the Bila Tserkva Police Penal Inspectorate about the criminal case with regard to K*** which she was dealing with.

Bearing in mind the above-listed violations of the rights of defendant K*** and other infringements of the law during the pre-trial investigation, the court considers it necessary to inform the Head of the Bila Tserkva Police Department of the MIA Central Department for the Kyiv region in order that the appropriate measures be taken to remove such infringements in future.

Governed by Article 23-2 of the CPC, the court:

HAS RESOLVED

to inform the Head of the Bila Tserkva Police Department of the MIA Central Department for the Kyiv region  of the violations of current legislation established in order that appropriate measures be taken.

That the Bila Tserkva City-District Court be informed of the measures taken within the established time period.

  Judge (signature)

It would be expedient to extend such practice among judges with this contributing to the real safeguarding of detainees’ rights.

Recommendations

All last year’s recommendations remain in force.

  1. introduce amendments to legislation which would make detention without court sanction the exception, this being in compliance with the restrictions provided for by Article 29 § 3 of the Constitution.
  2. Bring the time limit for bringing a person before the court, set down in Article 106 of the CPC, into line with Article 29 of the Constitution, taking into account the time necessary for the judicial examination and ruling;
  3. Define the starting point for detention on suspicion of committing a crime or an administrative offence based on the actual circumstances of the case, not on the decision of a law enforcement officer;
  4. Define in law separate criteria of legality for detention and remand in custody and annul provisions in Item 2.5 of the Joint Order by Ukraine’s Ministry of Internal Affairs and the State Department for the Execution of Sentences No. 300/73 of 23 April 2001, which considers a detainee’s release when the suspicion is not confirmed or when the term of detention has expired as a breach of the law, and other similar instructions;
  5. Include in the subject matter of detention hearings circumstances, which address reasons for arrest without warrant, including the following:

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

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

  1. Establish a clear presumption in favour of a person’s release and provide that the onus of providing proof of grounds for detention be shifted to the prosecution;
  2. Introduce provisions, which would exclude remand in custody or its extension on the basis of purely hypothetical assumptions;
  3. Formulate the risks in connection with which detention is allowed in such a way as to exclude remand in custody depending on the position of accused and tactics employed by the defence;
  4. Introduce provisions which would exclude the practice of detaining a person after his/her release by a judge on the basis of «concealed» accusations;
  5. Exclude from legislation the institution of «detention extension» by a judge, or, at least, introduce necessary amendments to the legislation, in order to prevent the practice of returning a person to a police unit after detention has been extended;
  6. Introduce amendments to Article 165-2 § 4 of the CPC, in order to exclude detention without court control for longer than the period established by Article 29 § 3 of the Constitution;
  7. Provide people remanded in custody with the right to periodic appeals against the justification for keeping them in custody;
  8. Establish clear and detailed procedural rules for court review of whether to remand a person in custody or release him or her pending trial, in particular ensuring the following::

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

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

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

  1. Prepare procedure, which would encourage the use of bail instead of detention;
  2. Define more clearly the judge’s scope of powers concerning remand in custody, in particular, to establish clearer criteria for exceptional cases, when a judge can go beyond the margin of his/her general authority;
  3. Shorten the maximum term of detention during pre-trial investigation.
  4. Bring the rules of administrative detention into conformity with the requirements of Article 29 of the Constitution;
  5. Introduce amendments to legislation which would exclude the use of administrative detention for the purpose of criminal investigation, for example, by providing mandatory release of a person suspected of having committed an administrative offence pending the hearing into the case.
  6. Introduce amendments to the Code of Administrative Offences (in particular, to Article 26) and other legislative acts, which would exclude police custody of a person without a court order for over 72 hours.
  7. Provide procedure for court hearings concerning the detention of vagrants and people begging, or, at least, enable them to appeal against such detention and provide rules for such procedure;


[1]  Prepared by Arkadiy Bushchenko, lawyer and legal expert for KHPG

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