Ukraine’s unprecedented law
In an article with the above title for Dzerkalo Tyzhnya, Oleh Shubin investigates how ready – or otherwise – Ukraine is to comply with the European Court of Human Rights’ order asking it to provide a strategy by December for improving the procedure for remand in custody.
As reported by Valeria Lutkowska, the Government’s Representative on European Court of Human Rights Matters, the instruction to Ukraine was given by the Court in its pilot judgement in the Case of Kharchenko v. Ukraine (Application no. 40107/02) on 10 February 2011. The Court found that there had been a number of violations under Article 5 of the European Convention on Human Rights (the right to liberty and security of person) with respect to the periods of his detention not covered by any court order. Mr Kharchenko had been held in custody in the Kyiv SIZO No. 13 [detention facility] from 20 April 2001 to 4 August 2003 as part of criminal proceedings on suspicion of embezzlement from a firm. The criminal proceedings were finally suspended in 2004 “for failure to establish the identity of the suspected offender”.
Due to the huge number of repetitive cases coming before the Court, since 2004 it has been applying a system of pilot judgements which highlight systemic problems leading to violations of the Convention, and asks the given state to take measures to rectify the situation.
In the Case of Kharchenko v. Ukraine, the Court noted that it regularly finds violations of Article 5 § 1 (c) of the Convention as to the periods of detention not covered by any court order, namely for the period between the end of the investigation and the beginning of the trial and the court orders made during the trial stage which fix no timelimits for further detention, therefore upholding rather than extending detention, which is not compatible with the requirements of Article 5. Both issues, it said, appeared to be the result of legislative failings.
It also pointed out that after a certain period of time, reasonable suspicion is not sufficient justification for deprivation of liberty and the judicial authorities should give other grounds for continued detention.
The Court stated that Ukraine needs clear procedure for review of the lawfulness of remand in custody and that specific reforms in legislation and administrative practice must be urgently implemented in order to ensure their compliance with the requirements of Article 5.
The Court asked the Government to submit the strategy adopted in this respect within six months from the date on which the judgement in the Case of Kharchenko v. Ukraine became final, at the latest.
The Court stressed that detention should be applied when there is a risk that the person will abscond or try to exert influence on the witnesses. It pointed out the court should take into account such issues as whether witnesses have all been questioned when deciding whether to extend remand in custody.
This, the author writes, is the theory. He then goes on to explain what happens in practice.
On 24 May 2011 the Court of Appeal in Kyiv considered an appeal against a decision by the Pechersky District Court in Kyiv extending the detention to four months of Yaroslav Sorokovoy, Director of the company Interfarm, accused of using his official position to embezzle property. The Court of Appeal – with presiding Judge I. Moroz, and two other judges: V. Pashkevych and L. Bartashchuk - allowed the defence counsel’s appeal.
The Pechersky District Court’s ruling, issued on 16 May, had extended the period of detention to 4 months since the pre-trial investigation had not been completed and a number of investigative tasks, listed by the Senior Investigator, still needed to be carried out.
The Court of Appeal, however ruled that the local court had not had sufficient grounds for extending Sorokovoy’s detention since the investigators had not provided evidence to suggest that the accused would attempt to hide from the investigators or court, avoid fulfilling procedural decisions or try to leave the country. Nor had they given reason to believe that he would continue (alleged) criminal activities, or obstruct the course of justice by communicating with others accused and encourage them to give false testimony. It found that the lower court had also failed to take into consideration such factors as that the accused has a permanent home, is supporting his student son and mother who requires care, that he had received positive character references and had not faced criminal or administrative proceedings in the past.
On 5 January 2011 the Prosecutor General’s Office had initiated criminal investigation №49-3085 over alleged appropriation of public funds on a particularly large scale by misuse of official position under Article 191 § 5 of the Criminal Code. The Ministry of Internal Affairs [MIA] CID was assigned the pre-trial investigation.
On 23 March 2011 the Pechersky District Court remanded Sorokovoy in custody, and on 6 April the investigation into the case was extended to four months.
Since the detention period was to end on 21 May, on 16 May the Senior Investigator of the MIA CID, V. Kharkevych, having agreed this with the Deputy Prosecutor General, applied to the court to extend the period of detention by four months. It was this ruling, allowing the application, which was successfully appealed.
According to Article 165-3 of the Criminal Procedure Code, the period of detention can be extended in the absence of grounds for changing the restraint measure or if it is impossible to conclude the investigation.
The Pechersky District Court did not take into account the fact that neither the Investigator’s application, nor the file material, contained information indicating the lack of grounds for changing the restraint measure.
The Investigator’s application listed actions still needing to be done, but gave no convincing explanation for why they had not already been carried out. In the two month period that Sorokovoy had been in detention, he had only been questioned twice and no other investigative measures had been undertaken.
The panel of judges in the Court of Appeal, after analyzing the circumstances, concluded that the main investigative activities had been carried out and that the accused could not impede the process of establishing the facts of the case. They said that the arguments that the accused could abscond, continue criminal activities, try to persuade other people implicated in the case to give false evidence, were mere assumptions not substantiated by any facts. The gravity of the crime was not sufficient grounds for extending detention and needed to be considered together with other circumstances.
The fact that the accused does not admit guilt, they found, was not in the range of circumstances taken into account at all.
It therefore found that the Pechersky District Court had not had sufficient grounds for extending the term of detention, and revoked its ruling. It released Yaroslav Sorokovoy from custody on a signed undertaking not to abscond.
However this was not the end of the story.
On 7 June 2011 one of the members of the High Council of Justice, M. Havrylyuk, registered a motion to have all three judges who passed the above-mentioned ruling, revoking the extension of remand in custody dismissed “for violating their oath”.
The document states that ignoring the opinion of the Prosecutor, the panel of judges from the Criminal Proceedings Chamber of the Kyiv Court of Appeal unlawfully and unwarrantedly allowed the appeal lodged by the accused, Y. Sorokovoy’s, lawyer. The investigator in his application had clearly stated the grounds justifying the need to extend the period of detention. The circumstances cited in the application also, it alleged, demonstrated the lack of grounds for changing the restraint measure to a signed undertaking not to abscond. The motion also claims that the accused could exert influence on his subordinates in Interfarm.
It also asserts that the accused had hidden from the investigators for over a month, had been declared wanted and detained. The motion adds that he is charged with a crime which can carry a sentence of over 10 years imprisonment. The first instance court had, the motion contends, correctly extended the term of detention, while the Court of Appeal had taken a one-sided position solely in favour of the accused in order to change the measure of restraint to a milder one, with bias and lack of objectivity asserting lack of convincing proof that the accused could influence the course of the investigation, evade the investigation and court. The author of the motion considers that the judges of the Court of Appeal had unwarrantedly interfered in the course of the pre-trial investigation. He claims also that without the legally stipulated powers, the judges had given an unfounded assessment of the actions of the investigator regarding the scope of activities in a certain space of time, had unwarrantedly claimed that the prosecution had completed the main investigation activities and used this assessment as the grounds for revoking the Pechersky District Court ‘s judgement. The author claims that these conclusions were biased, not objective and not true. The author continues a bit longer, than states that the circumstances which the Appeal Court judges give are nothing more than a distortion of the content of criminal procedure norms which demonstrate their bias and lack of objectivity in exercising justice.
They have therefore, it is alleged, undermined the previous efforts of the investigation department and the district court and impeded the course of unbiased and impartial justice.
The author of the article concludes that it is futile to cherish hopes that the precedents of the European Court of Human Rights will cease to be part of the baggage of fine declarations but instead become a real part of domestic legislation.
The article concludes with extensive quotes from the Case of Kharchenko v. Ukraine which can be found here http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Kharchenko%20|%20v.%20|%20Ukraine&sessionid=61809738&skin=hudoc-en
The above is abridged from the original Ukrainian at http://dt.ua/articles/84539: (from where the wonderful illustration is also filched!)