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Human rights in Ukraine – 2008. 3. THE RIGHT TO LIBERTY AND SECURITY

   

[1]

Legislation and practice regarding the right to liberty remain virtually unchanged. The number of people detained on suspicion of committing a crime is far in excess of the numbers actually convicted of crimes.

Examination by the courts of cases on deciding whether to remand a person in custody[2]

№ з/п

Region (oblast referred to unless otherwise indicated)

Cases under consideration

Examined

total

Including applications allowed

2007

2008

Rate of change

2007

2008

Rate of change

2007

2008

А

Б

1

2

3

4

5

6

7

8

1

Autonomous Republic of the Crimea

2770

2877

3, 86

2700

2864

6, 07

2488

2586

2

Vinnytsa

1780

1224

-31, 24

1774

1214

-31, 57

1577

1016

3

Volyn

792

787

-0, 63

786

787

0, 13

612

617

4

Dnipropetrovsk

4515

4191

-7, 18

4494

4182

-6, 94

4169

3848

5

Donetsk

5263

5081

-3, 46

5238

5057

-3, 46

4753

4543

6

Zhytomyr

847

799

-5, 67

842

793

-5, 82

746

721

7

Transcarpathian

552

507

-8, 15

540

504

-6, 67

378

339

8

Zaporizhya

2116

2351

11, 11

2093

2337

11, 66

1830

1834

9

Ivano-Frankivsk

519

601

15, 80

471

583

23, 78

425

504

10

Kyiv

1006

991

-1, 49

977

989

1, 23

894

847

11

Kirovohrad

1228

1301

5, 94

1220

1291

5, 82

1094

1130

12

Luhansk

3137

3110

-0, 86

3109

3106

-0, 10

2799

2875

13

Lviv

1213

1116

-8, 00

1212

1115

-8, 00

1084

982

14

Mykolaiv

1260

1244

-1, 27

1218

1200

-1, 48

1068

1078

15

Odessa

3174

3613

13, 83

3162

3596

13, 73

2608

2860

16

Poltava

871

820

-5, 86

858

806

-6, 06

760

688

17

Rivne

410

450

9, 76

374

436

16, 58

290

335

18

Sumy

1001

1069

6, 79

978

1051

7, 46

867

902

19

Ternopil

275

315

14, 55

272

314

15, 44

235

276

20

Kharkiv

2877

3075

6, 88

2870

3052

6, 34

2405

2627

21

Kherson

1199

1263

5, 34

1195

1248

4, 44

1052

1114

22

Khmelnytsky

707

719

1, 70

703

719

2, 28

586

632

23

Cherkasy

1093

932

-14, 73

1089

929

-14, 69

903

761

24

Chernivtsi

523

675

29, 06

520

675

29, 81

417

581

25

Chernihiv

826

899

8, 84

817

894

9, 42

750

769

26

Kyiv city

3751

4013

6, 98

3728

3972

6, 55

3277

3382

27

Sevastopol city

658

744

13, 07

656

742

13, 11

483

527

31

Military courts of the Central Region

68

70

2, 94

67

70

4, 48

38

45

34

Military Courts of the Marine Forces

43

40

-6, 98

42

39

-7, 14

19

21

 

total

44474

44877

0, 91

44005

44565

1, 27

38607

38440

including

Local ordinary (except military))

44363

44767

0, 91

43896

44456

1, 28

38550

38374

Military garrison courts

111

110

-0, 90

109

109

0, 00

57

66

 

Detention without a court order is the rule with the presence of a court order being the exception. This is despite the fact that Article 29 of the Constitution demands the contrary. Thus the fast majority of all criminal procedure detentions are unlawful. One of the purposes of such detention is to extract a confession from a person suspected of having committed a crime. The entire system of detective inquiry and criminal investigation is based on receiving such confessions. One and the same unlawful means continue to be used in order to achieve this aim. These have become standard and are perceived by the police, prosecutor and court as the norm: unregistered detention; pressure to reject the services of a defender; the use of administrative arrest for the purpose of criminal prosecution; extension of the period of detention to 10 days, and others. The degree to which this practice is widespread was confirmed by the work of the Department for Monitoring Human Rights Adherence in the Work of the Ministry of Internal Affairs (DMHRA), created within the MIA in 2008). Human Rights Aides to the Minister have received more than 200 applicants just on issues regarding unlawful detention.[3]. At the same time, only 4 police officers were punished in 2008 for infringing the periods for holding a person in custody (against 3 in 2007).

The problems identified and recommendations made in the reports from 2004-2007 remain current. It should be noted that conditions in temporary holding facilities, centres for the reception and distribution of vagrants and other MIA places where people are held in custody have slightly improved. This has come about to a large extent thanks to the constant visits to police special units by mobile groups monitoring human rights observance. In 2008 with the creation of DMHRA, the number of visits increased sharply and covered the entire country.

In 2008 several opinions were issued by international bodies which confirm the problems identified in previous years’ reports.

 

1. The use of administrative detention for the purpose of criminal prosecution

The UN Working Group on Arbitrary Detention which visited Ukraine on an official mission from 22 October to 5 November 2008 noted in its report that the law enforcement agencies are inclined to circumvent the time limits for bringing somebody before a judge by using detention for administrative offences. This restricts the right to defence and control of the court since courts base their decisions purely on police protocols. The period of administrative detention is used by the police to get the person to confess to a criminal offence (Items 59-61 of the Report).[4]

At the beginning of 2009 the European Court of Human Rights issued its Judgment in the case of Doronin v. Ukraine (16505/02, 19 February 2009). It found that there had been a violation of Article 5 of the Convention and that administrative detention had been used for the purpose of criminal prosecution. On 19 April 2000 the investigator had ordered that the applicant be brought to him as the suspect in a criminal case. On 20 April the applicant was detained in Kharkiv and taken to the investigator in Poltava. On that same day he was accused of resisting police officers, and on 21 April the Oktyabrskiy District Court in Poltava sentenced the applicant to five days’ administrative detention. .

The European Court of Human Rights considered that even if one were to assume that the applicant had indeed shown resistance to the police officers, this had happened after he was detained on suspicion of committing a crime and therefore the authorities should have ensured the procedural guarantees due a person detained on suspicion of committing a crime. Furthermore the Court noted that during the administrative detention, the applicant had been questioned with regard to a criminal case. The Court concluded that the administrative detention had been a part of the applicant’s detention in custody as a suspect.

The use of administrative arrest and detention remain very widespread in criminal proceedings.

 

2. Detention for vagrancy

The problem of detention for vagrancy was noted in previous years’ reports. In its report the UN Working Group on Arbitrary Detention also touched on this problem which has been raised by human rights organizations for several years now, and yet still remains unresolved in Ukraine’s legal system.

The Working Group noted that legislation does not contain a definition of the term «vagrant» and detention is in practice used to anyone who cannot provide means of identification. The Working Group also mentioned that detention for 30 days without being brought before a judge is in violation of Article 9 § 4 of the International Covenant on Civil and Political Rights.

The use of detention «for vagrancy» is also very widespread in criminal proceedings in order to obtain additional time and opportunity for extracting a confession.

According to MIA data in 2008 584 people were detained for vagrancy.

 

3. Remand in custody

In 2008 the European Court of Human Rights issued judgments in cases against Ukraine which back the conclusions of previous reports regarding systemic violations of the right to liberty.

 

3.1. Non-enforcement of a decision on release from custody

In the Case of Kats and others v. Ukraine (№ 29971/04, 18 December 2008 the investigator’s Order to release Olga Biliak from custody which it was claimed had been issued on 29 January 2004 was not carried out under 1 February. The unwarranted delay was one of the reasons for Olga Biliak’s death in SIZO [remand centre] No. 13. The Court concluded that for 3 days she had been held in custody illegally, in breach of the Order for her release.

The Case of Mikhaniv v. Ukraine (№ 75522/01, 6 November 2008) concerned yet another practice which is widespread among the law enforcement agencies, this being to manipulate the charge in order to bypass a court ruling ordering that the accused be released. In this case the applicant was twice released from custody by court order. However immediately after the court rulings, the prosecutor once again arrested him on other charges which were part of the same investigation. The European Court stated that although for the new arrest following the court ruling charges had been used that were formally different from those concerning the court ruling, the charges were part of one and the same investigation. It noted that this situation «gives the strong appearance that, on two occasions, the authorities used the largely similar charges, which had already been part of the case against the applicant, as a pretext to secure his continued detention, thereby circumventing the effect of courts’ orders on the applicant’s release. It does not appear that the domestic law clearly regulated such a situation or provided sufficient guarantees against abuse»

 

3.2. Detention without a court order

In the Case of Svershov v. Ukraine (№ 35231/02, 27 November 2008) a systemic problem in Ukraine’s legislation was highlighted, where individuals whose cases are submitted to the courts are held in custody without court order, but purely on the basis of the submission of the case to the court. This same problem was found in the cases of Solovyov and Zozulya v. Ukraine (№№ 40774/02 and 4048/03, 27 November 2008) and Yeloev v. Ukraine (№ 17283/02, 6 November 2008).

 

3.3. Lack of justification of court rulings

The cases of Svershov v. Ukraine, Solovyov and Zozulya v. Ukraine, Yeloev v. Ukraine and Mikhaniv v. Ukraine reveal a number of cases regarding the justification of remand in custody during criminal proceedings. In all the cases a violation of Article 5 § 3 of the Convention was found in the lack of grounds for the court orders remanding the people in custody. It was stated that the courts had issued these orders merely on the grounds that the person was charged with a crime of a certain degree of severity, while no circumstances were cited to suggest the risk that the person would abscond, or any other grounds to warrant holding them in custody. Furthermore the courts in their rulings had not discussed the possibility of applying other preventive measures. These problems have been noted in previous reports. The situation regarding grounds for court rulings on remand in custody is not changing and gives grounds to predict that these violations will be among the most frequent in future judgments passed down by the European Court of Human Rights.

 

3.4. Procedural guarantees for a person detained while the question of remand in custody is being decided

In the case of Svershov v. Ukraine violation was found of Article 5 § 4 of the Convention due to the fact that the court in its ruling did not answer the arguments of the defence which were in favour of releasing the applicant.

In the case of Yeloev v. Ukraine the violation of Article 5 § 4 was found because the court had refused to examine the latest appeal from the applicant to be released, referring to the fact that he had been turned down before several times.

 

3.5. Remand in custody pending extradition

In previous reports we have noted that people being held in custody for the purpose of extradition do not have the possibility of initiating a court review of the grounds for their continued remand in custody, this violating Article 5 § 4 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The European Court of Human Rights in the cases of Soldatenko v. Ukraine and Svitporusov v. Ukraine (№ 2929/05, 12 March 2009 found violations of Article 5 § 4 of the Convention precisely on the grounds set out in previous reports.

Furthermore, in these cases, as well as in the case of Novik v. Ukraine (№ 48068/06, 18 December 2008) violation was found of Article 5 § 1 of the Convention due to the total lack of clear and foreseeable procedure regulating detention and remand in custody pending extradition.

 

4. Recommendations

All last year’s recommendations remain current.

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

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

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

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

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

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

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

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

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

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

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

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

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

12  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;

13  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;

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

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

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

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

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

16  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;

17  Shorten the maximum term of remand in custody during pre-trial investigation

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

19  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

20  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.

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

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



[1] By Arkady Bushchenko, Bar Lawyer, KHPG Legal Expert, Head of the UHHRU Board

[2] According to information from the State Judicial Administration

[3] Human rights in the work of the Ukrainian police – Kharkiv, Prava lyudyny, 2009 – p. 48. Available at http://umdpl.info.

[4] Human Rights Council, Tenth session, A/HRC/10/21/Add.4, 9 February 2009

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