3. RIGHT TO LIBERTY
The Criminal Process
In 2012 a significant reform of the criminal proceeding law started with the Criminal Procedure Code coming in force. The steps already taken give hope that many structural problems mentioned in the earlier reports will be resolved.
The unrecorded detention still remains a crucial issue, related to the legal and practical systemic problems highlighted in the earlier reports. Specifically, the country was further criticized by the European Court on Human rights in this respect, e.g. on the cases Grinenko v. Ukraine, (no. 33627/06, November 15, 2012) and Smolika v. Ukraine (No. 11778/05, January 19, 2012 .
The new CPC provides rather strong safeguards against arbitrary and unrecorded detention. As stated in our former reports, the unrecorded detention remained a problem due to certain imperfections of the legislative regulation, which stipulated a term up to several days between the moment of actual detention and its registration (writing down the detention protocol. The new CPC specifically spelled out (Article 209) that “a person is considered detained from the moment when he/she is forced under compulsion or order to stay with the authorized official or in the premises determined by the authorized official”. Besides, other CPC provisions stipulate rather rigid procedure for detention registration and delivery to a militia ward, including the duty to investigate the cases of unjustifiably delayed delivery.
Reasonable doubt with respect to criminal offense
In the earlier reports we referred many a time to the faulty law, due to which the reasonable doubt provision applied to a suspect, detained or kept in custody, was not considered by the courts in their deliberations. One of the recommendations contained in the last year’s report was “obliging the court to consider the validity of suspicion or accusation against person to be detained or taken into custody”.
Article 177.2 of the new CPC provides an important guarantee against arbitrary measures. It means that not a single measure can be taken without the reasonable suspicion. It changes completely the practice which had been in place since 2001, governed by the rule “in considering the motion on detention, the judge is not allowed to investigate the evidence, evaluate it or by other means check the proof of the suspect’s or the accused’ guilt, consider and rule on the issues which are the matter of criminal court hearing on the merits of the case” (see the Resolution of the Supreme Court № 4, p. 10 of April 25, 2003).
The CPC establishes the obligation to consider the validity of the suspicion, which under the definition of the the European Court on Human rights “is a necessary precondition for the legality of custody” (Nechyporuk and Yonkalo v. Ukraine, No. 42310/04, § 219, April 21, 2011 року). Article 177.2 broadens the definition of the “reasonable suspicion” to cover also other preventive measures.
Under the European Court on Human Rights practices, “the reasonable suspicion on which the detention is based is an important component of the guarantee against unjustified arrest and detention, stipulated by Article 5 § 1(с) of the Convention”. The ECHR defines that “the reasonable suspicion referred to in Article 5 § 1(с) of the Convention envisages the circumstances or information which would convince an impartial observer that this person has, probably, committed certain offense” (K.-F. v. Germany, November 27, 1997, § 57).
Unlawful arrest and detention in custody
The lack of valid justification of the decision to take in custody or reference to the grounds which cannot justify the custody, also remain a problem. Under the European Court on Human Rights practices “ the persistence of a „reasonable suspicion‟ that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain elapse of time it is no longer sufficient.10 To continue pre-trial detention, the authorities have to give “relevant” and “sufficient” reasons and show that they had displayed “special diligence” in the conduct of the proceedings.(Letellier v. France, June 26, 1991, § 35, Series A no. 207).
Passing decision in the case Lutsenko v Ukraine (no. 6492/11, July 3 2012) the court referred to the applicant’s delay in the familiarization with the case files. The European Court on Human Rights pointed out that “it is not convinced that the detention in this situation is an adequate reaction to the problem…Besides, the circumstances of the case testify that the investigator decided to apply such a severe measure to the applicant only ten days after studying the case files…Besides the studying of the case files is a right and not a duty of the accused and the time for this familiarization cannot be limited” (§ 68-69). The court also referred to pressure put on the witnesses by the applicant, who grants interviews to the media; the European Court though, was not convinced that it is a legitimate ground for detention, as exercising the right to free expression is not a violation. (§ 70-71). The refusal of the applicant to give evidence and plead guilty was also considered ground for detention, which is direct violation of the right to remain silent and presumption of innocence.
In the case Коrneykova v Ukraine (no. 39884/05, January19, 2012), addressing the detention of a 14-year old girl, the courts offered no substantiation of the exclusive circumstances, which under the law would justify such measure. The courts also failed to respond to defense’s arguments with respect to lack of risk of escape or unlawful bearings of certain circumstances on the decision to keep the girl in custody (§§ 46-48).
In the case Borysenko v. Ukraine (no. 25725/02, January 12, 2012 ) the courts only mentioned in their rulings that earlier placement in custody is the correct measure, although, under Article 5 § 3 of the Convention reasonable suspicion of criminal offense eventually becomes insufficient and the courts should provide other grounds for detention. (§ 50). Moreover, there was a case in which the court rejected the applicant’s motion for release, referring to its invalidity. The European Court believes that the decision in fact demanded that the accused proves his innocence, is contrary to the very letter of Article 5 § 3of the Convention (§ 50-51).
Decision in the case Тоdorova v. Ukraine (no. 16717/05, January 12, 2012) also lacked substantiation of the necessity to keep the applicant in custody more than 5 years (§ 63).
The new CPC provides detailed description of the risks (Article 177), which might justify detention. Besides, the Code consistently adheres to the concept under which the burden of proof for any circumstances which can be interpreted in favor of the preventive measure is always placed on prosecution. Article194.1 establishes that “the judge, the court must establish or prove the circumstances provided by the criminal investigation parties, testifying to 1) the presence of reasonable suspicion of the criminal infringement committed by the suspect or the accused; 2) presence of sufficient grounds to believe that at least one of the risks quoted in Article 177 of the Code is in place, and investigator or prosecutor points it out; 3) insufficiency of use of more lenient preventive measures to eliminate the risk or risks mentioned in the motion”. If the prosecution failed to prove circumstantial evidence, it is a sufficient ground for the release or use of a different preventive measure.
The use of detention for illegitimate purposes
The European Court on Human Rights referred to more cases when arrest or detention in custody was used for purposes not justifying deprivation of liberty. The European Court decision in the case Lutsenko v Ukraine (no. 6492/11, July 3, 2012), addressing the detention and imprisonment of the former Minister of Interior of Ukraine was the most resonant one. The decision sustained that ‘the prosecution bodies, requesting the detention of the applicant, directly pointed at the applicant’s contacts with press as one of the reasons for his detention and accused him of twisting public opinion with respect to his felony, discrediting the prosecutоr’s office operation and influencing future court hearing with the goal of evading criminal prosecution. The Court believes that such substantiation, provided by the prosecutor’s office clearly shows its efforts to penalize the applicant for public rebuttal of the accusations against him and plea of innocence, which is his right. Under the circumstances, the Court had nothing else to do but to rule that the restriction of the applicant’s freedom was …used not only to deliver him to the competent body under the reasonable doubt of the crime, but also for other reasons” (§§ 108-109).
Similar violations were revealed in other cases as well. In its decision in the case Кlishyna vs. Ukraine (no. 30671/04, February 23, 2012), the national court ordering detention referred to the unwillingness of the applicant to plead guilty of committing a grave crime. (§ 92).
In the case Кoval et al. v Ukraine (no. 22429/05, November15, 2012) the applicants were detained without any legitimate grounds; the militia just abused its authority in a civil-legal dispute.
It is noteworthy that detention as a measure against exercising one’s right to free expression of opinion was popular in 2012, as demonstrated by the following examples.
On January 2, 2012 an activist M.Kytsyuk was detained in Sebastopol for taking away an umbrella with Party of Regions political slogans from the Father Frost effigy, under the city Christmas tree.
In Volyn’ oblast’ a 73-year old retiree was detained for “staining” the billboard with the Yanukovich’s New Year greeting.
On February 24, 2012 the activists distributing condoms with Yanukovich’s image on them were detained. Four activists were sentenced to 15 days in administrative detention.
On March 2, 2012 two Kherson National Technical University undergraduates were detained for disseminating “anti-presidential leaflets” in the city street. Criminal proceedings were instigated against them for group hooliganism. Eventually the case was re-qualified as administrative infringement.
On May 21, 2012 a picketer A.Ilchenko was detained by militia near the Presidential Administration building. From militia precinct he was taken to psychiatric ward, where the doctors did not find any reason to hospitalize him.
On July 1, 2012 militia by force put an end to the final event of the itinerant exhibit “Human rights off side”. One of the exhibit organizers N.Boyarsky was taken to the militia ward.
On August15, 2012 the activists of “Vidsich”[Resistance] movement distributed the leaflets urging Kyiv voters not to vote for the Party of Regions and, specifically, for its candidate for majority precinct № 222 in Solomenka district of Kyiv M.Lutsky. Three activists (K.Chepura, M.Hordiychuk and V.Tytarenko) were detained with the use of force and taken to the militia precinct, where the protocol accusing them of aggravated resistance to militiamen was compiled.
More detailed information on the persecution of public activists for the expression of their opinion can be found in the Chronicle of political persecutions.
Absence of the detainees at the court hearings on expediency of detention
In Korneykova’s case the European Court established the violation of Article 5 § 4 of the Convention, i.e. the absence of the applicant at the trial on expediency of her detention in the appellation court. As the courts in their decisions referred to the applicant’s “character”, the European Court believed her presence an essential element of the due court procedure. (For comparison, see below the case “Molochka v. Ukraine”).
It is noteworthy that the new Criminal Procedure Code stipulates in Article 21.3 compulsory presence of every person,”at the hearing in the court of any instance, with respect to his/her rights and duties envisaged by this Code”.
Regulation on deprivation of liberty in the new Criminal Procedure Code
It is noteworthy that the provisions of the new CPC concerning detention and imprisonment are much more progressive and detailed than respective provisions of the CPC of 1960.
Here is a brief description of certain novelties instrumental in resolving the problems addressed in our former annual reports:
1. In the report of 2004 and all the subsequent reports it was recommended “to determine the beginning of detention on suspicion of criminal or administrative infringement according to factual circumstances testifying to the person’s actual deprivation of liberty”. Article 209 of the Code stipulates that the detention starts at the “the moment when he/she is forced under compulsion or order to stay with the authorized official or in the premises determined by the authorized official”.
2. In the report of 2004 and all the subsequent reports it was also recommended “to consider in all trials on expediency of detention or release all the factual circumstances related to the justification of detention of taking in custody, including: justification of suspicion or accusation which are the alleged grounds for detention of the suspect (the accused); justification of the term of detention prior to habeas corpus; to establish unambiguous presumption in favor of person’s release and to place all the burden of proof of detention expediency on the prosecution”. Articles 177 and 194 of the Code envisage respective provisions, as was stated above.
3. The earlier reports recommended “developing procedures which would promote bail in lieu of detention”. The new Code provides a broad opportunity to use bail. In the majority of cases, the judge passing decision in favor of detention is obliged to determine the amount of bail bond, under which a person can be released (183.3). However, the flaw of CDC bail regulation, which beyond any doubt will lead to the narrowing of its application and systemic violations of Article 5 of ECHR and numerous European Court decisions against Ukraine, is the requirement that bail can be paid only in money equivalent. Therefore, the law excludes the possibility of mortgage bail (the most widely spread type of bail all over the world), securities etc.
4. The earlier reports recommended “reducing the marginal term of detention for the duration of pretrial investigation”, which was done by the new CPC. The term of detention for the duration of pretrial investigation cannot exceed 12 months (Article 197.3).
5. The new CPC envisages the procedure for regular reviewing of the expediency of detention, both on the prosecution’s and the defense’s motion.
6. The new CPC does not establish the marginal term of detention in the course of court consideration of the case. The court, however, establishes the requirement of regular reviewing of the expediency of detention within the intervals not exceeding two month’s period.
7. The Code offers rather flexible system of preventive measures apart from detention.
Detention with the purpose of extradition
The justification of detention
The absence of adequate legal regulation of the detention with the purpose of extradition has been pointed out by the European Court in its numerous decisions of the years 2007-2009. On June 17, 2010 the Criminal Procedure Code was duly amended with the aim of filling this gap.
In its decision on the case “Molochka vs. Ukraine” (no. 12275/10, April 26, 2012), the European Court referred to the new legal situation following these changes. The decision is important as the clauses introduced into the CPC on June 17, 2010 were transferred to the new Criminal Procedure Code practically without any changes.
The Court recognized the new regulation as generally satisfactory. However, in this case the Court mentioned that the applicant was held in custody for unreasonably long period of time, quoting the fact that for 11 months the prosecutor’s office took no action towards the extradition of the applicant. (§§ 171-172). The European Court also made another important remark to the effect that temporary measures, applied by it to prevent the extradition of the applicant do not create a legal obstacle for the decision related to extradition procedure (§ 174).
Court reviewing in extradition procedure
The European Court also considered the applicant’s complaints as to the scope of court reviewing of the legality of his detention with the purpose of extradition (Article 463 of the CPC of 1960). The Court established that the applicant participated in the hearing of the first instance court, while the applicant’s absence at the appellation hearing did not violate “ the equality of parties” in the circumstances of the case, as the applicant was represented by an attorney (§ 182).
The Court also studied the applicant’s argument that in deciding upon the expediency of his detention the national court was not obliged to consider his arguments concerning his persecution by the Belarusian authorities and violations in criminal case against him. The European Court noted that the CPC envisages a special procedure for such cases – extradition verification with the possibility of court appeal – in the course of which the applicant’s arguments were considered, and did not believe that the national courts are obliged to refer to the applicant’s arguments while deciding the expediency of detention (§ 186-188).
The Court, however, remarked that the verification of detention legality by the national court should also include the issue of reasonable term of the applicant’s detention. This issue was not considered by the courts, which led to the violation of Article 5 § 4 of the Convention (§ 189).
Promoting the most complete implementation of the new Criminal Procedure Code provisions with respect to the protection of right to liberty; promoting the broad use of alternative preventive measures, as opposed to detention;
Preventing courts from establishing unreasonably high amounts of bail bond and promoting due consideration of individual circumstances, including the means of a person;
Changing the bail definition in the Code, so that other types of bail (mortgage etc) could be used alongside with money bail;
Eliminating provisions which establish the minimum bail and leaving the determination of bail bond amount exclusively to the court’s and judges’ competences.
 Prepared by A.Bushchenko, UHUHR executive director.