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3. Right to liberty and security


[1]

Control of detainees in the new Criminal Procedure Code

With the adoption of the new Criminal Procedure Code there was a significant progress in the legal control of detainees during criminal proceedings. In particular, the grounds for detaining a person suspected of a crime by an authorized official without court sanction were aligned with the Constitution of Ukraine: in the case of perpetration of an offence or attempt to commit an offence and if immediately after commitment of an offence a witness or a set of obvious signs indicate that a certain person has just committed a crime an offence. After a detention an authorized person shall by technical means report on detention to the agency carrying out the preliminary investigation and bring the detained person to the nearest body of the pre-trial investigation and immediately register there the delivery of the detainee and if the delivery of the detainee takes more time than it is objectively necessary, the investigator is expected to investigate the reasons for this and solve the issue of liability of officials who are to blame[2].

   According to art. 209 of the CPC Ukraine, the detention period is calculated from the moment of detention, which is determined by the Code in accordance with the practice of the ECHR, that is when the above person by force or through submission to the orders has to stay with the authorized officer or in the room defined by an authorized official.

   Article 212 of the CPC of Ukraine specifies that in each unit of the pre-trial investigation there is an official in charge of keeping the detainees, who shall immediately register the detainee, explain her / him the reasons for detention, her / his rights and responsibilities and to ensure proper treatment of detainees and respect for her / his rights and prompt rendering of appropriate medical aid, as well as making a formal record by a health worker of the injury or deterioration of the health of the detainee, including, following the expressed will of a detainee, to admit a specific person who has the right to engage in health activities, to ensure recording of information about all actions performed involving the detainee. However, neither the CPC nor the MIA instruction about the on-duty militia organization which duplicates the last position of the CPC does not even mention the very document in which the above records should be entered about the actions conducted involving the detainee.

Actually, in the bodies of internal affairs the functions of such official responsible for the detention are performed on a “part-time” basis by a duty officer having a huge number of other priority duties. Currently, the officers’ supervisory duties, including the responsibility for the health of the detainees, are not included in a separate regulatory document, but are only mentioned in one subparagraph of the instruction on the organization of the on-duty responsibilities of the internal affairs agencies with a rather inappropriate title “Consideration of the circumstances of people brought to an internal affairs agency”. For comparison, in England and Wales there is a separate Procedural Code regarding the detainees, their treatment and interrogation by police officers as part of the Law on Police and Collection of Evidence in Criminal Proceedings of 1984 (PACE), which regulates in detail all aspects of receiving, holding and transfer (release) of detainees on police premises. Therefore, the legal regulation of these issues in the Ukrainian legislation is manifestly inadequate. Even in the previous CPC[3] the procedure of short-term detention of persons arraigned on suspicion of having committed a crime an offense was defined by a separate normative act of the FSU[4].

   Despite the legislative innovations, the entry into force of the new CPC brought about no significant changes in law enforcement, and such kinds of violations of the law as unacknowledged detention, delay in registration of detention under the false pretext are in use until now.

   The operatives go on arraigning persons and the official arrest report is done not by them, but by the investigators. Accordingly, they enter a distorted time and place of the actual arrest into the report; thus they hide the delay in registration of detention, and, which is most important, the detainee is kept under control of operatives indefinitely without assigning them the status of a suspect and therefore depriving detainees of opportunities to take advantage of the relevant procedural rights.

   According to the lawyers acting as defense attorneys, in order to leave out the CPC provisions the law enforcers employ various tricks, including entries in the relevant registers about a “visit” of a person paid to the militia station of their own free will who later went away, while in fact the person continues to be kept at the militia station. In general, the registration of the arraigned person brought to the militia premises as a visitor is used by militia officers to interpret the status of a person as “free person”, which is not in a position of subordination to the officer, who has ordered her / him to stay at hand, and allegedly is free to leave the premises of the militia station.

   In order to beyond the general prohibition to carry out detention without judicial approval in some cases they use the “procedure” as follows: at first the person is actually arraigned and kept at the district militia station, where they get from her / him the right information about the crime. Then the investigator brings an action before the court about taking into custody and after obtaining judicial sanction s/he executes a process-verbal about detention, which as the time of arrest indicates the time that followed the decision of the court, as well as a fictitious place of detention.

   There is no doubt that the new CPC having banned grounding court judgments with testimony furnished to the investigator or the prosecutor, that is the process-verbal of the relative investigation and, therefore, made futile receiving obtaining confession from the detainee and significantly complicated the task to substantiate the charge in court. However, obtaining information from a person under physical and / or psychological pressure which will provide evidence of a crime, including material, in condition of being illicitly kept under control of officers from the moment of actual arrest and until the time of the official registration of arrest provides sufficient motivation for torture in the course of pre-trial investigation. In addition, through the use of physical and psychological violence they can intimidate a detainee who later during her / his meeting with the lawyer either repudiates testimony or being somewhat afraid of future ill-treatment by officers choose a position of admission of guilt.

   Moreover, despite the fact that the CPC explicitly specifies that the explanations received from participants in the criminal proceedings and other persons are not evidence; such explanations selected by the personnel of the body of pre-trial criminal investigation, continue to be attached to the materials of criminal proceedings. In fact, during the entire stay at the militia department and until detainee’s transfer to the detention center the detainee remains under control of the public agents in the law enforcement agencies where the operational staff mostly perform arraignment without the sanction of the investigating judge and later repeatedly contact with this person and take her / him to a body of pre-trial investigation, serve as a convoy during transportation to a court, during the choice of the measure of restraint, etc., that is they can exert pressure on the detainee. Obviously, the officers are motivated to use illegal methods of investigation, especially torture and ill-treatment. Of course, the illegal practice of arrest and detention of persons without registration at the agencies of internal affairs is combined not only with the application of pressure to make them to confess or get relevant information, but also with the ill-treatment in terms of the lack of food and conditions for normal sleeping on the premises of the investigating agencies.

   The duty units of regional militia stations have registers recording all individuals coming to the militia station; each entry comprises ​​information about name, middle name and surname of the person, information about a militia officer who invited the person to come to the district department or who arraigned the person, address of the person visiting the district department, as well as a column fixing claims filled out by the arrested or invited person with indication of the essence of the claim or the lack thereof.

  It should be noted that even after its entry into force the new CPC the MIA, despite the clear definition of the moment of detention in article 209 of the Code, left some means for manipulating both in determining the time of arrest, and even with the recognition of the fact of detention. According to the MIA’s instruction on organization of the work of duty units of militia bodies since the yearend of 2011 instead of two registers--one for the persons brought in and another for visitors and invited persons—they used a single register to record the detainees, visitors and invited persons. It gives the law enforcers virtually unlimited discretion to grant the status of persons brought by them to the militia, including after their previous physical arraignment.

   Thus, presently the legal status of a person is not determined by the real nature of the relationship of authorized officers with the person (physical detention or voluntary consent to come to the militia), but the content of the entry in the register. A person can actually be arrested, taken to the militia and recorded in the register as a visitor or not registered at all, and then the actually detained person is deprived of jail-placement time keeping and in the absence of official status of a detained person the detainee cannot enjoy formal procedural rights provided by the law.

   Another problem is that according to the MIA Instruction on the organization of the daily work of the duty units of the militia agencies a person is considered “delivered” only when s/he has been delivered to the duty unit of the militia agency, and the militia ward for these individuals is called “rooms for detainees and delivered”. Thus, the individuals who have been forcibly brought to the militia skirting the duty unit and are (illegally) held on other premises acquire the status of detainees only if the relevant record is written down.

   Thus, a part of the people forcibly detained in militia cells is not granted the status of detainees since the very moment of their actual detention. This ambiguity in the legal status of persons forcibly brought to the militia is explained by special regulation on arraignment on suspicion of commitment of a crime and administrative detention preceded by “bringing” over to the militia without giving the status of the detainee. It should be noted that the new CPC contains no concept of “a delivered person”; the term remains in the Code of Ukraine on Administrative Offences (art.265 -9, 260). If a person is taken onto the militia premises and is not transferred to the duty unit, s/he is not deemed to have been forcibly kept at militia station. Of course, such a regulatory settlement for short-term detention of people, like the very practice of keeping persons on the premises of law enforcement authorities, does not comply with the provisions of article 5 of the Convention and practice of the ECHR, for example, in the case I.I. vs. Bulgaria.

Judgment of the European Court of Human Rights against Ukraine on the violation of article 5 of the Convention on Human Rights and Fundamental Freedoms

Arbitrary arrest and taking into custody

   The ECHR in the case Taran vs. Ukraine, application no. 31898 /06, judgment of October 17, 2013 again expressed its clear position that “§1 of article 5 of the Convention requires that, in order to consider it free from willfulness, it is not sufficient to apply deprivation of freedom in accordance with national law only, it should also be deemed necessary in the given circumstances”.

   In the case Sizarev vs. Ukraine, application no. 17116 /04, January 17, 2013 and Tymoshenko vs. Ukraine, application no. 49872 /11, judgment of April 30, 2013 the ECHR reminded once more that the court, when considering the application of taking into custody, should hear the arguments of the parties: “although article 5 of the Convention imposes no obligation on the judge when considering complaints about detention to look into every argument contained in the appellant's submissions, her guarantees might have been deprived of effect, if judge, based on national laws and practice, could interpret as irrelevant or ignore specific facts relied upon by the detainee, which could be able to question the “legality” of deprivation of freedom”.

   Instead, in the case of Syzarev the court did not take into account the fact that the sick-leave certificate, which proved the applicant's inability to participate in the investigation, and information about his alleged intimidation of the victim were based solely on the statement of the latter; moreover, “the findings of the court about several trips of the applicant without the permission of the investigation do not contain facts, even in a generalized form”.

   In the resonant case of Tymoshenko the ECHR repeated the view about the critical importance of the observance of the general principle of legal certainty when the deprivation of freedom is considered: “so that the conditions, under which under national law the deprivation of freedom is carried out, were clearly defined and so that the application of this legislation was predictable to the extent that meets the standard of “lawfulness” under the Convention, “and acknowledged that decision about taking the applicant into custody” is in itself contrary to the requirement of legality”.  Also, the ECHR held that “the reasons for taking her into custody put forward against her do not point to any risk of applicant’s avoidance of justice” and the court order for taking her into custody contained no references to her violation of the preventive measure in the form of violation of the pledge not to leave and there was no reason to treat her coming to the court a few minutes late as “reluctance on her part to cooperate”. Based on the judge's decision, “the main reason for the applicant's detention was alleged obstruction to the establishment of truth in the case and disdainful behavior” which in the sense of art.5 §1 of the Convention is not grounds for imprisonment. In addition, “the Court cannot see why the replacement of applicant’s pledge not to leave the jurisdiction pending trial by taking into custody was in those circumstances the most appropriate precaution”. Given that the grounds and, consequently, the purpose of pretrial detention of the applicant remained unchanged until the conviction, the ECHR concluded that her deprivation of freedom throughout this period was arbitrary and illegal.

   In the case of Taran, the ECHR underlined the need to justify pre-trial detention by specific circumstances of the case: “Arguments pro and contra discharge, including the risk of interference of the accused with the proper conduct of the proceedings, should not be presented in abstracto, but must be supported by facts. The risk of escape of the accused cannot be measured only by the severity of the sentence he faces. It has to be evaluated with reference to a number of other factors that may either confirm the existence of danger of escape or make it so small that it cannot justify detention in custody for the duration of the proceedings (§68 of the judgment).

   In the case of Barilo vs. Ukraine, application no. 9607 /06, judgment of May 16, 2013 the ECHR found a violation of Article 5 §1 of the Convention in the case where the judge extended the detention to ten days just to ensure that the investigating authorities have time to prepare their adduction for ​​taking detainee into custody with the subsequent refusal of the prosecutor to allow for it in the absence of evidence of any circumstances which might prevent making it before the above adduction because the criminal case was initiated three days before arraignment of the applicant and adduction was submitted to the court three days after the arrest.

   In the case of Taran, the ECHR also found a violation of §1 (c) in conjunction with article 5 §3 of the Convention in terms of government’s failing to prove the existence of risks for the use of pre-trial detention as a preventive measure and justification of its application solely on the basis of the severity of punishment faced by the accused and violation of §1 (c ) of Article 5 of the Convention on the extension of keeping the applicant in custody after the preliminary investigation and referral of criminal cases to court in the absence of a judgment on (extension of) detention.

   In the case of Gerachenko vs. Ukraine, application no. 20602 /05, November 7, 2013 the ECHR found a violation of §1 (c) of Article 5 of the Convention by the Court of Appeal which, setting aside of judgment, imposed further detention without specifying any reasons for this and determining its deadline.   

   The use of deprivation of freedom for an illegitimate purpose

   In the case of Tymoshenko, the ECHR stated that although the applicant's deprivation of freedom was formally carried out for the purposes provided for by sub-paragraph “c” of paragraph 1 of Article 5 of the Convention “for the purpose of bringing her before the competent legal authority on reasonable suspicion of her having committed an offense”, but the actual context and motivation given by the state authorities indicate that the real purpose of the event was the punishment of the applicant's contempt of court, which, as stated, she demonstrated by her conduct during the proceedings.  

   Unregistered detention

   In the cases of Gavula vs. Ukraine, application no. 52652 /07, judgment of May 16, 2013 and Belousov vs. Ukraine, application no. 4494 /07, judgment of November 7, 2013 the ECHR found a violation of §1 of article 5 of the Convention on inconsistencies in registration of the actual moment of arraignment when the delay in registration made one day. Moreover in the case of the case of Belousov (§83) the ECHR concluded that “the applicant was treated as a suspect and he remained under the de facto control of the militia at the militia station… and he was not allowed to leave the building of the militia station voluntarily”.

   The ESPL confirmed its position that “the absence of the record of the arrest should be considered a serious offense by itself, because, as established by the court, the unacknowledged detention of an individual is a complete negation of the fundamental guarantees provided for in article 5 of the Convention and is a serious violation of this provision” (case of Havula, §82).   

    Imposition of administrative arrest as an administrative penalty

   In 2013, the ECHR again made ​​a decision which read that in Ukraine persisted the problem of administrative detention under a false pretext in order to be able to carry out legal proceedings related to suspicion of a criminal offense (the cases Kvashko vs. Ukraine, application no. 40939 /05, judgment of September 26, 2013), Rudnichenko[5] vs. Ukraine, application no. 2775 /01, judgment of July 11, 2013. In the case of Rudnychenko the ESPCH declared this practice also a violation of the principles of legal definiteness and protection from arbitrariness enshrined in article 5 §1 of the Convention.

   Moreover, in the case of Kvashko the ECHR found a violation of Article 5 §3 of the Convention in respect of undue delay in bringing the detainee before a judge as a result of delay of administrative and penal procedures that occurred without a break in time.  

    Illegal arraignment of the participants of the Yevromaidan

   30.01.2013, there was a massive beating by the service personnel of former Berkut Special Forces of MIA of Ukraine of the participants of Yevromaidan and arraignment of more than 30 people. The ECHR gave a priority status to the application including the illegal detention of one of the victims of the dispersal of peaceful action Igor Syrenko (Sirenko vs. Ukraine, application no. 9078 /14)[6]. The circumstances of the case testify to the effect that after beating executed by special force the applicant was taken to the militia station and kept there for several hours without informing him of the grounds for detention. The ECHR sent the case to the Government of Ukraine for communication requesting information about conformity of the detention to the provisions of §1 article 5 of the Convention[7].  

   Unfounded extension of detention

   For the most part the legal decisions made by the ECHR in 2013 in cases against Ukraine on violations of Article 5 of the Convention related to the absence of changes in the justification by the courts of detention of the applicants over certain periods of time, their actual refusal to review the legality of the detention and considering the use of alternative preventive measures.

   In the case of Herashchenko the ECHR noted numerous violations by Ukraine in the past of Article 5 §3 of the Convention on the grounds that, even in the event of a long period of detention the domestic courts relied on the same arguments for the existence of such throughout the period of imprisonment or even used the stereotypical formulations totally ignoring the flow of time. Moreover, the Court reminded the rules by which the prolonged detention may be considered reasonable:

   - It “may... be justified only if there are factual indications that the requirements of a valid public interest, despite the presumption of innocence, outweigh the rule of respect for individual liberty laid down in Article 5 of the Convention”;

   - “When deciding on the release or detention of a person, the authorities should consider alternative measures to ensure her / his appearance in court”;

   - National courts should, “giving due consideration to the presumption of innocence, examine all the evidence for and against the existence of public interest which justifies a departure from the provisions of Article 5 and set them in their decisions on the applications for release”.

   According to the established practice of the ECHR (the cases of Herashchenko, Rudnychenko, Syzarev, and Taran), “the solid reasons for the period of detention are never assessed in abstracto”, “§3 of article 5 of the Convention cannot be viewed as one implicitly allowing pre-trial detention on condition that it takes no longer than a certain period”, and “justification of any period of detention, no matter how short it may be, must be demonstrated by the authorities beyond any doubt”.

   The ECHR repeated its view on the judgments in the cases of Rudnychenko and Herashchenko that “the continued existence of reasonable suspicion as to the fact that the person arrested has committed a crime is a must with respect to the lawfulness of the continued detention, but in length of time it becomes insufficient”.

   In the case of Havula the ECHR suggested that although the first applicant's detention could be justified by the seriousness of the charges brought against him and the likelihood of escape and obstructing the investigation, “over a period of time the courts were expected to give clearer reason for continued detention” “in fact, … they often relied on the same grounds without providing specific details and without analyzing whether the changes in the situation of the applicant have taken place”. The ECHR found the argument of the need of the investigation insufficient for continued detention of the applicants for several years and in the absence of data that the courts had considered the use of any alternative precautions concluded about the abuse of Article 5 §3 of the Convention.

   In the case of Syzarev the ECHR, having found a violation of §§1 and 3 of Article 5 of the Convention, stated that “the justification provided by the national courts in order to deprive the applicant of freedom … was described in general terms and did not take into account its specific and substantial argument” against taking into custody. Moreover, “the case file contains nothing to show that this substantiation has been developed over time and that further detention of the applicant in custody until his discharge was properly grounded”.

   In the case of Taran, the ECHR found a violation of Article 5 of the Convention in terms of long-term detention of the applicant based on the content of court judgments which were formulated in general terms “which does not suggest that the courts have properly assessed the facts relating to the issue of the need for this very preventive measure under the circumstances. Moreover, over time, the further detention of the applicant required better justification, but the courts did not provide any further argument with regard to this”.

   In the case of Rudnychenko the national court did not assess the applicant's arguments concerning the emergence of new circumstances that were to be taken into account when considering the continued detention and justified such attitude only by the applicant’s previous criminal record.

   In the judgment on the case of Samoylovich vs. Ukraine, application no. 28969 /04, judgment of May 16, 2013 the ECHR expressed its position on justification of prolonged pre-trial detention of the applicant who had no criminal record in the past and was accused of committing one episode of robbery: “in the case of special length of the detention of the applicant the reasons for this should be extremely serious” and acknowledged the insufficiency of grounds to justify the applicant's detention in custody for 5 years.

   Also, the ECHR found a violation of Article 5 §3 of the Convention in the case of Kobernik vs. Ukraine (application no. 45947 /06, judgment of July 25, 2013) when the judgment  of the Court of Appeal on return of the case for further investigation did not contain justification to let the detainer stand for the applicant.

   In the cases of Herashchenko, Komarov, Rudnychenko, and Havula the ECHR stated the rule that even when the reasons for continued detention are “applicable” and “sufficient” “the Court must ascertain whether the competent authorities have shown a “special diligence” in the conduct of the proceedings”. Based on this position, the ECHR in the case of Rudnychenko the delay in the proceedings related to the changing composition of the court found a violation of the applicant's right “to be tried within a reasonable time or to be released before the end of the trial” because it contradicts the position of the ECHR: “When these reasons are “applicable” and “sufficient” the Court must ascertain whether the competent authorities have shown a “special diligence” in the conduct of the proceedings”.

   In the case of Komarov vs. Ukraine, application no. 13371 /06, judgment of May 16, 2013 the ECHR stated that “the national court kept justifying further detention by the absence of grounds for his discharge, while §3 of article 5 of the Convention provides for the opposite approach and obliges national authorities to specify the reasons for the continued detention of a person”. Moreover, “there is no data … that courts have considered the possibility of using alternative preventive measures”.

   In the case of Herashchenko the Court found a violation of §3 of article 5 of the Convention because the justification of primary ruling about taking into custody by the seriousness of the offense and the risk of escape or commitment of a new crime was neither developed with the elapse of time of the proceedings, nor an alternative measure instead of keeping in custody was considered.  

   The absence of the detainee when considering detention

   In the case of Taran, the ECHR found a violation of Article 5 of the Convention in terms of long-term detention (five years and nine months) on the basis of court decisions, some of which were taken without hearing the applicant personally and were formulated in general terms, which does not suggest that the courts have properly assessed the facts relating to the issue of the need for this particular preventive measure under the circumstances. Moreover, over time, the detention of the applicant required further justification, but the courts did not provide any further argument with regard to this matter.  

   Violation of the right to review without delay of the lawfulness of the detention

   In the case of Tymoshenko, the ECHR concluded “that the scope and nature of judicial review provided to the applicant by the Pechersk Court do not meet the requirements of §4 of article 5 of the Convention”. At the same time, it took note of the numerous requests of the applicant for release from custody, in which she noted specific and important arguments in favor of discharge without specifying whether any of these arguments were considered at all apparently considering them irrelevant to the lawfulness of the pre-trial detention of the applicant, as well as suggestions on bail, all of which were rejected by the national court (§ 279 of the judgment).

    In the case of Syzarev, the ECHR found the term of appeal proceedings to review the legality of pre-trial detention of the applicant for 1 month and 5 days inconsistent with the requirement of “without delay” of §4 of Article 5 of the Convention.

   In the case of Taran, the ECHR once again found a violation of §4 of Article 5 of the Convention on the absence in Ukraine at the time of the events complained of (2005) of the procedure of review of the legality of continued detention after the completion of preliminary investigation.

Violations of the right to compensation for the victim of unlawful arrest or keeping in custody

   In the case of Tymoshenko, Kvashko, and Taran, the ECHR found a violation of §5 of Article 5 of the Convention on the grounds that the right to compensation for unlawful detention occurs when the illegality of the detention is determined by the decision of the national court while the laws of Ukraine do not stipulate a procedure for appeal to the national court to demand compensation for imprisonment if the ECHR founds a violation of any paragraph of Article 5 of the Convention.

   Implementation of the CPC (2012) concerning the right to freedom

   Naturally, with the entry into force of the new CPC no changes automatically occurred in the approach of the courts (investigating judges) to preventive measures. The practice shows that the severity of the crime continues to be a dominant factor in the application of preventive measures in the form of taking into custody. The judicial practice with relation to the new for the Ukrainian criminal procedure concepts of “reasonable suspicion” and “risks” in many cases is very different from the precedents of the European Court of Human Rights. There is a number of problems concerning the application of preventive measures, especially in the form of taking into custody, some of which are specific to the new criminal proceedings and related to the specific regulation of these issues by the CPC (2012), while other are traditional for our criminal justice system:

   - Laying the burden of proof of the absence of reasonable suspicion of having committed a crime, risks (art. 177 of the CPC) and the possibility of using less rigorous measure of restraint on the suspect contrary to the requirements of Part 2 of art.194 of the CPC;

   - Ignoring all the circumstances to be considered when deciding on detention, including health status (part 1 of art.178 of the CPC), and when considering a request for a preventive measure (part 1 of art.194 of the CPC);

   - Consideration of the property and the family status of the suspect when determining the size of bail (part 4 of art.182 of the CPC);

   - Insufficient use of alternative preventive measures: house arrest, bail, personal surety;

   - Extension of keeping in custody after the expiry of the approval of detention, in particular in case of expiry of approval of the investigating judge (part 4 of article 196 of the CPC) or the maximum period of detention in pre-trial investigation (art.197 of the CPC ), for example, in the case of transfer delay of the indictment to the court, error in the calculation of the expiration of the ruling of investigating judge on detention, violation by a prosecutor or investigator of the deadline for application for extension of keeping in custody (art.199 of the CPC);

   - Ignoring new developments that must be considered in accordance with part 3 of art.199 of the CPC of Ukraine for extension of the period of detention.

   On 04.04.2013, the High Specialized Court of Ukraine issued an information letter about some issues of the use of preventive measures during pre-trial investigation and court proceedings under the Criminal Procedure Code of Ukraine, in which it gave an explanation on the application of the relevant provisions of the CPC[8].

    It should be noted that there were cases when the courts considering the application of preventive measures not only demonstrated compliance with the national legislation, but acted in accordance with the approach of the European Court of Human Rights; examples are given below.

   Thus, on 09.12.2013 the Appellate Court of Cherkasy Oblast rejected the prosecutor's appeal to the ruling of the investigating judge on the application of preventive measure in the form of house arrest instead of keeping in custody, which had been petitioned by the investigator. The court motivated its decision including the fact that “the investigator failed to prove that other softer precautions cannot prevent risks as stipulated by art.177 of the CPC of Ukraine and did not take into account that detention is an exceptional preventive measure”[9].

   On 12.12.2013, the Solomyanka District Court of Kyiv with reference to the letter of the High Specialized Court of Ukraine for Civil and Criminal Cases of 04.04.2013 no. 511-550/0/4-13 “On some issues of the procedure of the use of preventive measures during pre-trial investigation and court proceedings under the CPC of Ukraine” dismissed the petition of the investigator about the use of keeping in custody as preventive measure in the case of expiry of the decision of the investigating judge on permission to arrest a person and her/his non-delivery to the court in session[10].

   On 12.12.2013, the Court of Appeal of Zakarpattia Oblast quashed the decision of the investigating judge on the use of the preventive measure in the form of keeping in custody if earlier another preventive measure was selected for the suspect. The investigator failed to mention in his petition the new circumstances that arose after the previous decision on the application of a preventive measure or existed at the time but were unknown to the investigating authorities. In addition, the investigator substantiated suspicion of commitment a crime by a person by evidence obtained prior to the entry of information about crime into the Unified Register, which, respectively, is inadmissible[11].  

   Some results of the introduction of the new CPC  

   There is one positive aspect of the practice consisting in continuing trend to reduce the number of criminal procedural arrests: they declined by 30. The number of applications of investigators and prosecutors for keeping in custody has decreased by 45% and the number of searches by 30%. According to MIA statistics, the investigators of the agencies of internal affairs without court authorization under art.207 and art.208 of CPC detained on suspicion of commitment a crime in the first quarter of 2013 3801 persons. This statistics fixes under one heading the arrests made both by authorized officials and civilians, and the resulting summary index of the number of detentions is included in the reporting forms of the bodies of pre-trial investigation. Firstly, it seems illogical to consider together arrests carried out by law enforcers and civilians since each of these types of arrest is regulated by separate rules, and that makes such statistics ambiguous. Secondly, it follows that there is still a standing rule recognizing the investigator as the official performing the arrest, although it is clear that in most cases investigators do not witness the commission of crimes or criminal attempt or stay close to the perpetrator immediately after the commission of crime. Currently, in fact, these arrests are carried out by others, mostly by militia operatives.

   Based on the information of MIA and Prosecutor General's Office, the number of applications for permission to arrest the suspect accused with a view to bring her/him to the court is not expected to be an index of statistical reporting on the activity of the bodies of pre-trial investigation.

   Analysis of crime statistics for the first quarter of 2013 compared with the corresponding data for 2012 shows that the number of people in investigative isolation wards declined by 35% or 11,000 prisoners: from 32 down to 21 thousand. The number of requests for taking into custody decreased by 45% from 2,500 monthly submissions in 2012 down to 1,350 monthly requests in the first quarter of 2013. Comparison with the year 2011 shows a decrease of 70%: monthly number applications in 2011 made 4,350. The incidence of alternative preventive measures also increased. Every month, up to 40 people used personal bail, up to 250 people--home arrest, and 2,100 people--personal commitment[12].

   According to official statistics, the Supreme Court of Ukraine the number of submissions of the investigating agencies about the preventive measure of keeping in custody in the first half of 2013 compared with the number of submissions their views on about the preventive measure of taking into custody in the first half of 2012 fell by almost 70%. The number of cases of bail as preventive measure increased up to 2.65 times. But the same index in the first half of 2013 amounted to only 6% of all cases of keeping in custody.

Index

First 6 mos. of 2012

First 6 mos. of 2013

No. of submissions about taking into (keeping in) custody / approved by courts (investigating judges)

16.3/14

9.7/8.3

Bail as preventive measure

505

190

      Since the entry into force of the new Criminal Procedure Code (as of 19.06.13), as stated by the expert of the Center for Political and Legal Reforms Olexandr Banchuk, about 12,500 individuals out of about 32 thousand were discharged from investigative isolation wards in Ukraine. He also noted about 30% reduction in the number of arrested suspects and fewer people are kept in investigative isolation wards. "If at the start of the new CPC there were 32 thousand prisoners in investigative isolation wards, as of June 1, 2013 there are 19,503 prisoners in investigative isolation wards. That is in fact 40% of prisoners were discharged from detention centers…”[13]

Keeping in custody with the aim to extradite an offender. Retrial in the course of extradition procedure

   The legal protection of persons subject to extradition cannot be considered effective. Moreover, in Ukraine there is no mechanism for individual assessment of the need for detention of every migrant or asylum-seeker as required by international law.

   Thus, the General Prosecutor of Ukraine informed that during 2009 – 2013 it received 640 requests for extradition of foreign citizens and 47 requests for temporary extradition. During this period, the Prosecutor General’s Office of Ukraine decided to extradite 420 people, temporary extradite 43 and transport in-transit through the territory of Ukraine 116 people. And here is the statistics of requests for extradition to foreign countries due to their criminal prosecution.

  

No. of requests received

No. of requests approved

No. of requests turned down

38

14

2

 

  The statistics of the court proceedings on the application of extradition arrest in 2013 confirms the low efficiency of relief at law in proceedings regarding the extradition of persons to foreign countries mainly using keeping in custody as a preventive measure[14]:

Type of procedure

Judgment

Approved

Turned down

Motion of the prosecutor on the application of extradition arrest

28

6

Motion of the prosecutor to extend extradition arrest

38

0

Appeal against extradition arrest:

 

 

-         office of a public prosecutor

2

7

      - Detained (counsel for the defense)

3

18

Petition of the detainee (counsel for the defense) to replace the extradition arrest with another preventive measure

0

5

  

   Foreigners and stateless persons who are illegally residing in Ukraine are not provided for by the legislation of Ukraine as special subjects of the right to free secondary legal aid. The Law of Ukraine postponed to 01.0.2015 the realization of this right for persons covered by the Law of Ukraine “On refugees and persons in need of additional or temporary protection”[15]. Therefore these categories of persons cannot effectively exercise their right to judicial protection of their rights, including the appeal against detention and interim custody.

   The statistics of complaints regarding violations of various aspects of the right to freedom and personal immunity by the agencies of the Security Service of Ukraine, Mia and public prosecutor's office received by the Secretariat of the Ombudsman of the Verkhovna Rada of Ukraine from 01.01. to 15.11.2013 is as follows:

Violated rights

No.

Right to freedom and personal immunity

2035

Right to court verification of the validity of keeping in custody

92

Freedom from arbitrary arrest or detention

403

Right to know the reasons for the arrest or detention

18

Right of the arrested or detained person to know her/his rights

6

Right of the arrested or detained for the defense and legal assistance of a lawyer (articles 29, 63)

221

Right of the detainee to challenge her/his detention in court

-

Freedom from unlawful compulsory treatment

517

Right of the arrested person to change the preventive measure

253

Right to notification of the relatives about the arrest or detention

23

Other violations of this issue

502

      Recommendations

     1. To implement the control system in relation to:

   - Cases of actual detention of individuals by the militia operatives without the approval of the investigating judges, including the cases without arrest reports;

   - Compliance with the provisions of article 209 of the CPC recognizing the moment of arrest of the suspect of a crime as the time of her/his deprivation of freedom of movement;

   2. In order to make article 208 of the CPC more exact it is advisable to specify the time of the arrest report.

   3. Prepare and adopt the law about regulation on detention in militia, which would detail the procedure for detention of persons for the whole period of their stay under the control of law enforcement agencies from the moment of arrest and up to the time of bringing this person to the investigating judge.

   4. To monitor compliance with the provisions of the CPC about entrusting the prosecutor with the necessity to prove the existence of reasonable suspicion, risk of escape of the suspect, accused, damage or destruction of evidence, adverse impact on witnesses or other persons and so on, as well as insufficiency of other preventive measures.

 

[1] Prepared by Gennady Tokarev, lawyer, Head of the Strategic Litigations Department, KHPG.

[2] Art.210 CPC.

[3] http://zakon2.rada.gov.ua/laws/show/1002-05; art. 106-1 CPC (1960).

[4] http://zakon2.rada.gov.ua/laws/show/v4203400-76

[5] In this and other cases the clerks responsible for court records stick to transliteration rules typical of Russian language and not Ukrainian. The correct transliteration in this case according to the rules of Ukrainian language is Rudnychenko (translator’s note).

[6] http://tyzhden.ua/News/100956?attempt=1

[7] #{%22docname%22:[%22sirenko%22],%22respondent%22:[%22UKR%22],%22documentcollectionid2%22:[%22DECISIONS%22,%22COMMUNICATEDCASES%22],%22itemid%22:[%22001-141427%22]}

[8] http://cn.cr.court.gov.ua/sud0122/10sudf/10qfdsazxcds/04042013/

[9] http://reyestr.court.gov.ua/Review/35929130

[10] http://reyestr.court.gov.ua/Review/36007274

[11] http://reyestr.court.gov.ua/Review/36048507

[12] http://www.pravda.com.ua/columns/2013/05/21/6990340/

[13] http://www.khpg.org/index.php?id=1371649248

[14] According to the Unified State Register of Court Decisions http://reyestr.court.gov.ua/

[15] http://zakon1.rada.gov.ua/laws/show/733-18